' 

SSM 


Nr  \^  -  •* 


UNIVERSITY  OF  CALIFORNIA 
v     AT   LOS  ANGELES 


SOUTH 

DAKOTA  CONSTITUTIONAL 
CONVENTION 


"HELD  AT  SIOUX  FALLS,  JULY,  1889 


VOL,  2 


HON.  A.  J.  EDGERTON,  President 
REV.  F.  A.  BURDICK,  Chief  Clerfc 
DR.  A.  W.  HYDE,  Engrossing  Clerk 


PUBLISHED  UNDER  THE  EDITORIAL  SUPERVISION  OF  DOANE  ROBINSON 
STATE  LIBRARIAN 


Huron,  S.  Dak. 


STACK  ANNEX 

A'1/ 


Constitutional  Convention  of  1889 

The  Convention  of  1889,  which  convened  at  Sioux  Falls  on 
July  4.  was  the  third  Constitutional  Convention  held  in  South  Da- 
kota. Volume  One,  of  this  series,  embraces  the  debates  of  the 
second  Constitutional  Convention  of  1885.  The  debates  of  the 
Convention  of  1883  were  not  preserved.  The  membership  of  the 
Convention  of  1889  was  as  follows: 

FIRST  DISTRICT  Sanford  Parker,  of  Fail  River;  Valentine  T. 
McGillicuddy ,  of  Penr.ington;  Chauncey  L.  Wood,  of  Pennington. 

SECOND  DISTRICT — Dighton  Corson,  of  Lawrence;  William 
S.  O'Brien,  of  Lawrence;  Charles  M.  Thomas,  of  Lawrence.  . 

THIRD  DISTRICT— S.  A.  Wheeler  of  Butte;  Thomas  W.  Thomp- 
son, of  Lawrence  ;  John  Scollard,  of  Lawrence. 

FOURTH  DISTRICT — William  McCustick,  of  Roberts;  Henry 
Xc-ill,  of  Grant;  C.  R.  Wescott,  of  Deuel. 

FIFTH  DISTRICT — William  Cook,  of  Marshall;  W.  G.  Dickinson, 
of  Day  ;  George  II.  Culver,  Day  ; 

SIXTH  DISTRICT-  Martin  R.  Henninger,  of  Brown;  Lyman  T. 
Boucher,  of  McPherson  ;  Hurry  T.  Craig,  of  Campbell. 

SKVKXTH  DISTRICT  S.  F.  Brott,  of  Brown  ;  William  Stoddard, 
of  Brown;  M.  P.  Stroupe,  of  Brown. 

ICic.irni  DISTRICT  11.  A.  Humphrey,  of  Faulk  ;  J.  G.  Davies. 
of  Kdmunds;  Peter  Couchman,  of  Wahvorth. 

XIXTH  DISTRICT  J.  F.  Wood.  <,f  Spink  ;  Thomas  Sterling,  of 
Spink;T.  W.  P.  Lee,  of  Spmk. 

TKXTII  DISTRICT  John  F.  Whitlock.  of  Potter;  David  llali. 
of  Sully  ;Chas.  li.  Price,  of  Hyde. 

FLKVKXTH  DISTRICT  C.  G.  Hartley,  of  Hand:  S.  F.  Huntlev, 
of  Jerauld;  K.  C.  Anders-, n,  of  Buffalo. 

,  TWKI.I--TII   DISTRICT     A.  G.    Kellam.  of  Bruie  ;  J.  V.  Willis,  of 
Aurora;  H.  I;.  Fellows,  of  Aurora. 


4592 


THIRTEENTH  DISTRICT — C.  H.  Van  Tassel,  of  Sanborn  ;  L.  H. 
Hole,  of  Beadle;  George  C.  Cooper,  of  Beadle. 

FOURTEENTH   DISTRICT—  Carl  G.  Sherwood,   of  Clark;  W.    H. 
Matsun,  of  Kingsbury  ;  S.  D.  Jeffries,  of  Clark. 

FIFTEENTH  DISTRICT — E.  E.  Clough,  of  Codington;  S.  VS.  Peck, 
of  Hamlin;  S.  B.  Van  Buskirk,  of  Codington. 

SIXTEENTH  DISTRICT — 1.  Atkinson,  of  Brookings;  I.  R.  Spooner, 
of  Kingsbury;  Joshua  Downing,  of  Brookings. 

SEVENTEENTH  DISTRICT — K.  W.  Eddy,  of  Miner;  F.  G.  Young, 
of  Lake;  R..  F.  Lyons,  of  Lake. 

EIGHTEENTH   DISTRICT — Andrew  J.    Berdahl,   of   Minnehaha 
II.  M.  Williamson,  of  Moody;  C.  C.  Gifford,  of  Minnehaha. 

NINETEENTH  DISTRICT— William  VanEps,  of  Minnehaha;  Clark 
G.  Coats,  of  Minnehaha;  E.  W.  Caldwell,  of  Minnehaha. 

TWENTIETH  DISTRICT — William  Elliott,  of  Turner;  A.  B.  Mc- 
Farland,  of  Lincoln;  J.  A.  Fowles,  of  Lincoln. 

TWENTY-FIRST  DISTRICT — John  L.  Lolley,  of  Clay  ;  A.  O.  Rings- 
rud,  of  Union ;  J.  Kimball,  of  Union. 

TWENTY-SECOND  DISTRICT— Edward  G.  Edgerton,  of  Yankton  ; 
Christian  Buechler,  of  Hutchinson;  C.  J.  B.  Harris,  of  Yankton. 

TWENTY-THIRD  DISTRICT — William  T.  Williams,  of  Bon  Homme 
Robert  A.  Smith,  of  Charles  Mix ;  Joseph  Zitka,  of  BonHomme. 

•   TWENTY-FOURTH    Dis   RICT — A.    J.     Edgerton,    of    Davison; 
Charles  A.  Houlton,  of  Douglas;  S.  A.  Ramsey,  of  Sanborn. 

TWENTY-FIFTH   DISTRICT — W.    H.    Goddard,   of   McCook;  W. 
II.  Murphy ,  of  Hanson  ;T.  F.  Diefendorf,  of  McCook. 


SOUTH  DAKOTA  CONSTITUTIONAL  CONVENTION. 

Sioux  Falls,  D.  T.,  July  4th,  A.  D.,   1889. 

At  the  hour  of  twelve  o'clock,  meridian,  on  this  4th  day  of 
July,  1889,  the  day  and  hour  appointed  by  law,  the  members-elect 
of  the  Constitutional  Convention  of  South  Dakota,  assembled  in 
Germania  Hall  and  were  called  to  order  by  Hon.  Dighton  Corson, 
of  Lawrence,  one  of  their  number. 

Mr.  Corson,  of  Lawrence:  Gentlemen  of  the  Constitutional 
Convention  of  South  Dakota:  The  Act  of  Congress  providing  for 
this  Convention  has  made  no  provision  for  any  particular  officer 
to  call  the  Convention  to  order.  At  the  request  of  several  gentle- 
men, I  now  call  you  to  order. 

We  will  first  invoke  the  blessing  of  Almighty  God.  The 
Convention  will  rise. 

Prayer  by  Rev.  L.  N.  Stratton,  of  Sioux  Falls: 

Great  and  Eternal  Father,  Thou  King  of  Kings  and  Lord  of 
Lords,  before  whom  angles  bow  and  to  Whom  nations  must  submit, 
we  pray  Thee  to  let  Thy  blessing  rest  upon  this  gathering  this  day. 
Grant,  we  pray,  O  God,  to  assist  the  members  of  this  Convention 
in  all  of  their  deliberations,  in  all  of  their  plans,  and  business,  and 
duties  and  arrangements,  and  help  them  to  realize  that  Thy  mercy 
is  upon  them.  We  thank  Thee  that  Thou  hast  sent  them  here. 
We  thank  Thee  that  they  have  at  last  reached  this  stage  in  their 
history  as  citizens  of  a  new  state.  Grant,  O  God,  that  Thy  blessing 
may  rest  richly  down  upon  them.  Give  them  wisdom,  knowledge 
and  understanding,  and  lead  them  to  know  that  the  God  of  this 
nation  is  their  God,  and  that  they  must  trust  in  Him  and  rely  upon 
Him  in  all  their  duties  and  plans,  Bless  the  Presiding  Officer  of 
this  Convention,  whomsoever  he  may,  be.  Bless  all  the  officers  in 
any  degree  or  grade  below  him;  and  grant  that  in  all  of  the  business 
arrangements  and  duties  of  this  gathering  there  may  be  a  realization 
of  the  presence  of  God. 

\Ve  ask  it  in  the  name  of  Jesus,  our  King, 
AMEN. 


SOUTH  DAKOTA  DEBATES  1889 


Mr.  Corson,  of  Lawrence:  I  will  ask  Mr.  Caldwell  to  read  the 
Proclamation  of  the  Governor. 

Mr.  Caldwell,  of  Minnehaha:  I  will  say  that  there  are  some 
typographical  errors  in  the  proclamation  as  printed,  and  that  I 
will  correct  them  so  far  as  I  may  know  them  to  be  such.  In  the 
Tenth  District  there  appears  a  name  which  is  entirely  wrong — the 
name  "Albert  Hall".  The  certificate  of  election  for  the  third 
member  from  that  district  has  been  issued  to  Charles  H.  Price. 

Mr.  Corson,  of  Lawrence:  Perhaps  you  will  read  it  as  pro- 
claimed, as  it  will  have  to  be  corrected  by  the  Convention. 

Mr.  Caldwell,  of  Minnehaha:     All  right. 

Mr.  Caldwell  here  proceeded  to  read  the  Proclamation  of 
the  Governor,'  entitled, 

PROCLAMATION 

—of  the— 
Election  of  Delegates  to  the  Constitutional  Conventions 

— of  the — 
States  of  North  Dakota  and  South  Dakota. 

But  only  such  names  of  delegates  were  read  as  were  by  the 
Proclamation  declared  elected  delegates  to  the  Constitutional 
Convention  of  South  Dakota. 

Mr.  Corson,  of  Lawrence:  For  the  purpose  of  knowing  how 
many  members  are  present  in  this  Convention  I  will  direct  now 
the  roll  to  be  called,  and  each  member  as  his  name  is  called  will 
announce  the  fact,  if  he  is  present. 

(The  roll  as  contained  in  said  proclamation,  after  being  cor- 
rected, was  called  by  Mr.  Caldwell.) 

Mr.  Corson,  of  Lawrence:  There  are  five  absentees:  Charles 
M.  Thomas,  J.  G.  Davies,  R.  C.  Anderson,  E.  E.  Clough,  and  Clark 
G.  Coates,  are  absent.  All  the  members  elected  to  this  Conven- 
tion being  present,  excepting  five,  and  there  being  more  than  a 
quorum,  the  Convention  can  proceed  to  the  election  of  the  presi- 
dent of  the  Convention.  Nominations  for  President  are  now7  in 
order. 

Mr.  Neill,  of  Grant:  I  think  the  proper  order  in  this  Conven- 
tion now  is  to  proceed  to  take  the  oath  of  office. 

Mr.  Corson,  of  Lawrence:  ^You'are  correct.     I  beg  your  par- 


OFFICKRS  CHOSKN  5 


don.  The  members  of  the  Convention  will  now  proceed  to  take 
the  oath  of  office.  The  Hon.  Bart  let  t  Tripp,  Chief  Justice  of 
the  Supreme  Court  of  the  Territory,  will  now  come  forward  and 
administer  the  oath.  The  members  of  the  Convention  will  all  rise. 
The  Hon.  Bartlett  Tripp,  Chief  Justice  of  the  Supreme  Court: 
You  and  each  of  you  do  solemnly  swear  that  you  will  support  the 
Constitution  of  the  United  States,  and  that  as  members  of  this 
Convention,  you,  under  the  Act  of  Congress  enabling  South  Dakota 
to  be  admitted  as  a  State  of  this  Union,  will  well  and  faithfully 
discharge  the  duties  of  that  office  according  to  your  best  learning 
and  discretion,  with  all  good  fidelity  to  yourselves  as  well  as  to 
the  people.  So  help  you  God. 

Mr.  Corson,  of  Lawrence:  Before  leaving  the  hall,  the  mem- 
bers of  the  Convention  will  attach  their  signatures  in  order  that 
Judge  Tripp  may  affix  the  jurat  to  the  oath. 

Nominations  for  President  of  this  Convention  are  now  in 
order. 

Mr.  Spooner,  of  Kingsbury:  Mr.  Chairman,  In  view  of  the 
fact  that  we  are  about  to  proceed  to  inaugurate  statehood,  real, 
and  also  that  we  wish  to  recognize  the  services  of  those  who  have 
assisted  us  in  making  this  possible,  I  beg  leave  to  present  the  name 
of  the  Honorable  A.  J.  Edgerton,  of  Davison  County,  for  President 
of  this  Convention. 

Mr.  Sherwood,  of  Clark:  Mr.  Chairman,  I  rise  to  second 
the  nomination  of  this  tried  captain  and  skillful  pilot  of  our  ship 
of  state,  recognizing  that  for  four  years  the  ship  which  he  lanuched, 
as  captain,  upon  the  stormy  sea,  has  been  honored  in  every  port, 
and  that  now  as  we  are  entering  into  the  harbor,  we  can  have  no 
surer  guarantee  that  we  will  reach  that  harbor  safely  than  to  place 
this  skillful  captain  at  the  helm.  I  therefore  second  the  nomination 
of  Honorable  A.  J.  Edgerton.  (Applause). 

Mr.  Price,  of  Hyde:  Mr.  Chairman,  I  take  pleasure,  Sir,  in 
presenting  the  name  of -S.  B.  Van  Buskirk,  of  Codington  County, 
for  permanent  President  of  this  Convention.  Without  derogating 
anything  which  has  been  said  of  the  eminent  jurist  who  has  been 
placed  in  nomination,  I 'can  commend  to  you  S.  B.  Van  Buskirk 
as  a  man  eminently  qualified  to  fill  the  important  duties  of  that 
station.  A  friend  of  statehood,  he  has  labored  in  the  past,  he 
believes  in  the  present,  and  is  hopeful  of  the  future,  and  would 
make  this  Convention  an  excellent  president. 

Mr.  Corson.  of  Lawrence:      Are  then-  anv  other  nominal 


SOUTH  DAKOTA  DEBATES  188  9 


There  being  no  other  nominations  I  declare  the  nominations  closed. 
Judge  A.  J.  Edgerton  and  Mr.  S.  B.  Van  Buskirk  are  nominated. 
How  shall  these  gentlemen  be  voted  for  at  this  time? 

A  Voice:     Roll  call. 

Mr.  Corson,  of  Lawrence:  The  roll  will  be  called  and  each 
member  as  his  name  is  called  will  announce  the  candidate  for  whom 
he  intends  to  vote;  and  I  will  ask  Mr.  Caldwell,  of  Minnehaha, 
and  Dr.  McGillicuddy,  of  Pennington,  to  step  forward  and  take 
the  names  as  they  are  called.  As  each -gentleman's  name  is  called 
he  will  announce  the  gentleman  for  whom  he  votes. 

(Three  delegates  had  voted  when  Mr.  Van  Buskirk  took  the 
floor.) 

Mr.  Van  Buskirk,  of  Codington:  Mr.  Chairman:  I  desire 
at  this  time  to  decline  the  nomination,  and  will  withdraw  my 
name.  (Great  applause.) 

Mr.  Neill,  of  Grant:  Mr.  President,  I  move  that  the  calling 
of  the  roll  be  dispensed  with  and  that  A.  J.  Edgerton  be  elected 
by  acclamation  as^the  President  of  this  Convention. 

Mr.  Corson,  of  Lawrence:  I  think  the  motion  is  out  of  order, 
unless  it  is  without  objection.  If  any  gentleman  objects  to  our 
dispensing  with  the  roll  call  he  will  now  make  it  manifest.  (Mo- 
mentary pause).  There  being  no  objection,  the  motion  is  in -order. 
It  is  moved  and  seconded  that  the  roll  call  be  dispensed  with  and 
that  the  Honorable  A.  J.  Edgerton  be  declared  the  unanimous 
choice  of  this  Convention  for  President.  Are  you  ready  for  the 
question?  (Question)  (Question).  As  many  of  you  as  are  in 
favor  of  that  motion  will  signify  it  by  saying  aye.  As  many  as 
are  o-pposed,  will  say  no..  The  ayes  have  it;  and  the  Hon.  A.  J. 
Edgerton  is  unanimously  elected  President  of  this  Convention. 
(Applause).  I  will  appoint  Dr.  Spooner  and  Mr.  Van  Buskirk 
a  committee  to  escort  Judge  Edgerton  to  the  chair. 

BRThe  Honorable  A.  J.  Edgerton,  President  elect,  was  escor  ed 
to  the  chair  amid  great  applause. 

Mr.  Corson,  of  Lawrence:  Gentlemen  of  the  Convention:  I 
have  the  pleasure  and  honor  of  presenting  to  you  the  gentleman 
whom  you  have  selected  as  your  President,  the  Hon.  A.  J.  Edger- 
ton. (Applause). 

A.  J.  Edgerton:  Gentlemen  of  the  Convention  I  can 
not  express  to  you  upon  this  occasion  the  feeling  that  I  en- 


ORGANIZATION  COMPLETED 


tertain  not  only  by  reason  of  your  selection  of  myself  to  this 
place  for  the  second  time  but  in  the  manner  in  which  it  has  been 
done.  All  that  I  can  say  to  you  now  is  that  I  shall  endeavor  to 
perform  its  duties  to  the  full  extent  of  my  ability  for  the  best  in- 
terests of  South  Dakota,  and  I  know  that  you  will  aid  me  in  pre- 
senting to  the  people  of  South  Dakota  and  the  world  a  constitution 
unrivaled,  and  that  we  may  hereafter,  under  it,  succeed  to  all  of 
those  rights  that  in  the  opinion  of  some  of  us  we  have  been  so  long 
prevented  from  securing. 

I  thank  you  again,  gentlemen,  for  this  selection  at  the  hands 
of  this  Convention. 

What  is  the  further  pleasure  of  the  Convention? 

Mr.  Wescott,  of  Deuel:  Mr.  President,  I  move  that  E.  W. 
Caldwell  of  Minnehaha,  be  elected  Temporary  secretary. 

A  Voice:     I  second  the  motion. 

By  the  President  of  the  Convention:  It  is  moved  and  seconded 
that  E.  W.  Caldwell,  of  Minnehaha  be  elected  Temporary  Secre- 
tary of  the  Convention.  Are  you  ready  for  the  question?  All 
those  in  favor  of  this  motion  will  signify  it  by  saying  aye;  contrary 
no.  The  ayes  have  it  and  Mr.  Caldwell  is  unanimously  elected 
the  Temporary  Secretary  of  this  Convention. 

Mr.  Jolley,  of  Clay:  Mr.  President,  I  move  that  a  committee 
of  five  be  appointed  by  the  Chair  to  provide  rules  for  the  govern- 
ment of  this  Convention. 

A  Voice:     I  second  the  motion. 

By  the  President  of  the  Convention:  It  has  been  moved  and 
seccnded  that  a  committee  of  five  be  appointed  by  the  Chair  to 
provide  rules  for  the  government  of  this  Convention.  Are  you 
ready  for  the  question?  As  many  as  are  in  favor  of  this  motion 
will  signify  it  by  saying  aye;  contrary,  no.  The  ayes  have  it,  and 
the  motion  prevails. 

The  President  appointed  and  the  Secretary  read  the  following 
names  of  gentlemen  appointed  as  the  committee  to  provide  rules: 
Mr.  John  L.  Jolley,  of  Clay;  Mr.  Wood,  of  Pennington;  Mr.  Clough, 
of  Codington;  Captain  H.  A.  Humphry,  of  Faulk;  Mr.  F.  G.  Young, 
of  Lake. 

Mr.  Kellam,  of  Brule:  Mr.  President,  after  congratulating 
you,  Sir,  and  the  members  of  this  Convention  now  assembled,  and 
the  people  generally  of  South  Dakota,  I  desire  to  move  that  the 
President  'of  this  Convention  be  authorized  and  requested  to  com- 


SOUTH  DAKOTA  DEBATES  1889 


municate  by  telegraph  the  greetings  and  congratulations  of  this 
Constitutional  Convention  to  the  Constitutional  Conventions  of 
North  Dakota,  Montana  and  Washington.  (Applause). 

Mr.  Neill,  of  Grant:     I  second  the  motion,  Mr.  President. 

The  President  of  the  Convention:  You  have  heard  the  motion 
made  by  Mr.  Kellam,  of  Brule.  Are  you  ready  for  the  question? 
As  many  as  are  in  favor  of  the  motion  will  signify  it  by  saying  aye ; 
those  opposed,  no.  The  motion  prevails. 

Mr.  Van  Tassell,  of  Sanborn:  Mr.  President,  I  move  you,  Sir. 
that  the  President  of  this  Convention  nominate  a  Conference 
Committee  of  three  to  confer  with  the  North  Dakota  Convention 
as  to  the  size  of  a  joint  committee  to  be  selected  by  the  two  Con- 
ventions, that  being  unsettled  in  the  Act  of  Congress. 

Mr.  Lee,  of  Spink:     Mr.  President,  I  second  the  motion. 

The  President  of  the  Convention:  Gentlemen  of  the  Con- 
vention, it  has  been  moved  and  seconded  that  a  committee  of  three 
be  appointed  by  the  Chair  to  confer  with  the  North  Dakota  Con- 
vention as  to  the  size  of  the  Joint  Committee  to  be  selected  by  the 
two  Conventions.  Are  you  ready  for  the  question? 

Mr.  Humphrey,  of  Faulk:  Mr.  President,  being  one  of  the 
Committee  on  Rules,  I  hesitate  to  speak  on  this  question;  but  the 
facts  are,  it  seems  to  me  that  it  would  be  a  part  of  the  province  of 
the  Committee  on  Rules,  and  a  part  of  its  business  to  present 
this  matter  to  the  Convention  for  its  action,  and  it  does  not  seem 
to  me  that  it  should  be  a  matter  to  delay  our  adjournment  on  this 
Fourth  of  July,  and  that  there  will  be  ample  time  to  consider  it 
after  the  report  of  the  Committee  on  Rules. 

Mr.  Kellam,  of  Brule:  Mr.  President,  my  thought  is  this, 
that  this  is  one  of  the  first  steps  that  this  Convention  should  take 
preliminary  to  the  act  of  the  State's  admission,  provided  for  by 
the  Omnibus  Bill.  I  understand  that  this  is  simply  the  appoint- 
ment of  a  committee  to  confer  with  the  North  Dakota  Convention 
as  to  the  number  of  gentlemen  comprising  this  commission  and  the 
time  as  to  when  they  will  be  prepared  to  meet  with  the  commission 
from  South  Dakota.  With  no  disrespect  to  the  Committee  on 
Rules — this  is  an  exceptional  committee,  and  I  think  that  the 
judgment  of  this  Convention  would  be  that  the  sooner  we  can  get 
this  matter  in  the  hands  of  the  Commission,  inasmuch  as  it  is  the 
only  matter  that  will  necessarily  consume  any  great  length  of  time, 


Tl-MI'ORAkY     Rri.KS 


tin-  sooner  this  Commission  will  get  to  work,  and  tin-  sooner  they 
will  bo  prepared  to  report.  My  judgment  is  that  this  is  one  of 
tho  first  steps  this  Convention  should  take.  It  cannot  be  done 
until  we  have  conferred  with  the  North  Dakota  Convention. 

Mr.  Weseott ,  of  Deuel:  Mr.  President,  I  move  an  amendment 
(0  the  motion  before  the  House,  that  this  be  left  to  the  Committee 
on  Rules — let  them  see  to  this  matter  and  return  their  report 
after  conferring  together — after  conferring  with  the  Committee 
appointed  by  that  Convention. 

The  President  of  the  Convention:  It  is  moved  that  a  com- 
mittee of  three  be  appointed  to  confer  with  the  North  Dakota 
Constitutional  Convention.  It  is  now  moved  by  the  gentleman 
from  Deuel  that  this  question  be  left  to  the  Committee  on  Rules. 
Are  you  ready  for  the  question?  (Cries  of  "Question").  The 
first  question  will  be  on  the  reference.  Those  of  the  opinion  that 
this  be  referred  to  the  Committee  on  Rules  will  say  aye ;  those  op- 
posed say  no.  The  Chair  is  unable  to  decide.  Those  in  favor  of 
the  reference  will  rise  and  stand  while  the  Secretary  counts.  You 
will  now  be  seated.  Those  of  the  contrary  opinion  will  rise  while 
the  Secretary  counts. 

The  Secretary  reported  that  there  were  36  ayes,  and  25  noes. 

The  President  of  the  Convention:  The  reference  moved  by 
the  gentleman  from  Deuel  is  carried,  and  the  whole  question  is 
referred  to  the  Committee  on  Rules. 

Mr.  Xeill,  of  Grant:  Mr.  President,  I  move  you  that  we-  now 
adjourn  until  two  o'clock  tomorrow  afternoon. 

Mr.  Caldwell,  of  Minnehaha:  Mr.  Chairman,  I  desire  to  move 
that  the  rules  of  the  Constitutional  Convention'of  1885,  shall  obtain 
so  far  as  they  may  be  applicable,  until  the  report  of  the  Committee 
on  Rules  is  adopted. 

A  Voice:     I  second  the  motion. 

The  President  of  the  Convention:  Are  you  ready  for  the 
question?  It  has  been  moved  and  seconded  that  the  rules  of  the 
Constitutional  Convention  of  1885,  shall  obtain  so  far  as  they  may 
be  applicable,  until  tho.  adoption  of  the  report  of  the  Committee 
on  rules.  Those  of  the  opinion  that  the  motion  prevail  will  sax- 
aye;  contrary  no.  The  motion  is  carried. 

Mr.  Xeill,  of  (irant:  Mr.  President.  I  will  now  repeat  my 
motion  to  adjourn. 

Mr.  Williams,  of  HonHomme:      Mr.  Chairman,  in  our  gathering 


10  SOUTH  DAKOTA  DEBATES  1889 

(referring  to  Republican  caucus)  it  was  determined  that  the  other 
temporary  officers  would  be  appointed  at  this  time. 

A  Voice:     No   Sir;  only  such  as  were  necessary. 

By  the  President  of  the  Convention:  That  has  no  force  in 
this  Convention.  It  has  not  been  acted  upon  by  this  Convention. 
It  has  been  moved  to  adjourn  until  tomorrow  at  two  o'clock. 
Those  of  the  opinion  that  the  motion  prevail  will  say  aye;  contrary 
no.  The  motion  prevails  and  the  Convention  is  adjourned  until 
two  o'clock  tomorrow  afternoon. 

ADJOURNED. 


SECOND  DAY. 

Friday,  July  5th,  1889. 

Two  o'clock  P.  M. 

The  Convention  re-assembled  pursuant  to  adjournment.  Mr. 
Kellam,  of  Brule,.  in  the  chair. 

Mr.  Kellam:  I  find  a  note  from  Judge  Edgerton,  President 
of  the  Convention,  asking  me  to  take  his  place  during  his  absence, 
for  the  day ;  this  is  the  explanation  of  my  being  in  his  place.  The 
Clerk  will  please  read  the  note. 

Which  was  done  as  follows: 

Sioux   Falls,   Dak.,   July   4,    1889. 
HON.  A.  G.  KELLAM: 

Will  you  please  act  as  President,  pro  tern,  of  the  Convention 
under  the  rules,  during  my  absence. 

A.  J.  EDGERTON. 

The  roll  was  called  and  every  member  answered  to  his  name 
as  called. 

Mr.  Neill:  I  move  that  if  there  are  any  delegates  present 
today  that  were  not  sworn  in  yesterday,  that  the  presiding  officer, 
(if  authorized  to  do  so)  administer  the  oath  of  office  to  them  at 
this  time. 

The  President,  pro  tern:  Are  there  any  delegates  here  now 
who  were  not  present  yesterday  to  take  the  oath  of  office,  if  so  let 
it  be  known.  It  being  a  matter  of  considerable  doubt  whether 
the  President  pro  tern,  will  be  authorized  to  administer  this  oath, 
if  these  gentlemen  will  come  forward,  a  Notary  Public  is  present, 
and  will  administer  the  oath  of  office. 

H.  M.  Avery,  Notary  Public,  administered  the  oath  of  office 
to  the  following  delegates  who  presented  themselves  for  that 
purpose:  E.  E.  Clough,  of  Codington  County;  J.  G.  Davies,  of 
Edmunds;  and  R.  C.  Anderson,  of  Hand,  as  follows: 

You  and  each  of  you  do  solemnly  swear  that  you  will  support 
the  Constitution  of  the  United  Stairs  and  that  as  members  of  this 


12  SOUTH  DAKOTA  DEBATES  1889 

Convention  you,  under  the  Act  of  Congress  enabling  South  Dakota 
to  be  admitted  as  a  State  of  the  Union,  will  well  and  faithfully 
discharge  the  duties  of  that  office  according  to  your  best  learning 
and  discretion  with  all  good  fidelity  to  yourselves  as  well  as  to  the 
people,  so  help  you  God. 

The  President  pro  tern:  The  Convention  will  now  listen  to 
the  reading  of  the  Journal. 

As  the  reading  of  the  Journal  proceeded  the  following  cor- 
rections were  suggested: 

Mr.  Anderson:     My  residence  should  be  Hand  County. 

Mr.  Lyon:     Lake  County  should  read  Miner  County. 

Mr.  Scollard:  Lawrence  there  should  be  changed  to  Meade; 
a  portion  of  Lawrence  County  was  attached  to  Meade  County  and 
Butte  County,  making  up  the  third  district ;  just  one  tier  of  town- 
ships. 

The  President  pro  tern:  The  territory  from  which  you  are 
elected  is  now  part  of  Meade  County. 

Mr.  Culver:  I  would  suggest  the  correction,  making  the 
Journal  read,  Marshall  County,  where  it  now  reads  Day  County. 

Mr.  Jolley:  In  the  Twenty-first  District,  Kimball,  of  Union, 
should  be  Kimball  of  Clay  County. 

Mr.  Clough:  I  am  down  in  the  report  as  a  laggard  yesterday ; 
I  do  not  like  to  go  into  history  as  a  laggard  without  the  knowledge 
that  I  am  a  substitute;  I  would  like  to  have  the  Journal  of  the  Pro- 
ceedings changed  just  a  little;  that  portion  saying,  "All  members 
responded  except"  etc.  I  was  substituted  to  perform  a  public 
service,  connected  with  the  national  celebration  yesterday.  I 
was  not  a  laggard. 

The  President  pro  tern:  The  members,  as  they  take  the  floor, 
will  announce  their  names,  so  that  the  stenographers  may  know 
to  whom  to  credit  what  is  said ;  we  are  making  history  now. 

Mr.  Neill:  I  call  Mr.  Caldwell's  attention  to  the  fact  that 
he  was  clerk,  pro  tem;  the  Journal  was  not  so  signed. 

The  President  pro  tem:  The  Chair  did  not  understand  the 
suggestion  of  the  gentleman  from  Codington,  to  be  in  such  shape 
that  any  action  should  be  taken  upon  it;  does  the  Convention 
consent  to  the  correction  of  the  minutes  so  as  to  correspond  with 
the  correction  suggested  by  Mr.  Clough? 

Mr.  Xeill:     I  do  not  understand  how  the  Convention  can. 

Mr.  Clough:  I  believe  it  is  due  a  man  that  did  as  hard  a  piece 
of  work  as  I  did  yesterday,  without  any  notice,  that  he  do  not  go 


CLOUGH'S   EXPLAN  \ 


into  history  as  a  laggard;  I  think  it  is  due  to  me;  that  it  might  to 
i  in  some  form  and  some  way,  why  I  was  not  here.  I  was 
detailed  at  Sioux  Falls,  to  give  a  public-  address,  as  a  substitute, 
and  was  so  engaged  cfuring  the  hour  set  for  the  assembling  of  this 
Convention. 

The  President  pro  tern:  Is  there  objection  to  the  eorreetion 
of  this  record  so  as  to  correspond  with  the  suggestion  of  Mr.  Clough  ~'. 

Mr.  Xeill:  I  have  no  objection  to  its  being  done  in  that  form  ; 
to  take  some  action  today,  explaining  the  absence  is  another  thing; 
I  do  not  think  that  a  correction  in  yesterday's  proceedings  would 
be  regular;  I  do  not  think  it  would  be  in  place. 

Mr.  Caldwell:  I  would  say  that  I  remember  there  was  some 
mention  made  at  the  time,  of  Mr.  dough's  absence,  of  his  being  in 
the  city;  I  believe  some  reference:  was  made  to  the  circumstances 
of  his  absence;  that  being  the  case  it  might,  without  any  very  great 
disturbance  be  incorporated  in  here  as  of  the  pro< 
terdav. 

Mr.  Lee:  I  think  the  gentleman  from  Minnehaha  was  correct  ; 
we  mentioned  the  fact  Mr.  Clough  was  doing  his  duty  on  our  great 
celebration  day. 

Mr.  Matson:  I  noticed  particularly,  that  the  explanation 
was  made,  that  Mr.  Clough  was  in  the  city;  no  statement  at  all 
as  to  what  he  was  doing;  simple  statement  was  made  that  Mr. 
Clough  was  in  the  city. 

A  Voice:  If  the  correction  is  made  as  suggested,  how  will 
you  explain  this  fact  that  all  the  other  members  were  sworn  in 
by  the  Chief  Justice,  and  he  comes  in  today  and  is  sworn  in  by  a 
Notary  Public-. 

The  President  pro  tern:      I  do  not  understand  that  tin- 
should   be  so  changed   as  to   show   his   presence  on   yesterday,  but 
the  record  should  be  so  amended  as  to  show  why  he  was  absent, 
invention  object  to  the  words  suggested  by  Mr.  Clough. 
which    shall    explain    upon    the   record    tin-   reason   of   his   al 
being  inserted:'      If  there  is  no  objection  now  made-,  it  will  betaken 
as  the  sense  of  the  Convention  that  tin-  record  should  be  so  amended. 

The  Chair  hearing  no  objection,  the  Journal  will  be  so  amended. 

Mr.  Ileninger:      In  the  printed  list  of  the  names  of  the  mer.  ' 
of  1  he  ()t  h  District  ,  my  name  is  spelled  wr 

The  President  pro  tern:  There-  being  no  further  corrections, 
the  record  will  then  stand  as  read  and  amended. 


14  SOUTH  DAKOTA  DEBATES  1889 

The  President  pro  tern:  The  next  order  of  business  is  com- 
munications and  presentations  of  petitions. 

Mr.  Caldwell:  There  are  two  communications  upon  the  table 
of  the  Clerk. 

The  President  pro  tern:  The  Convention  will  listen  to  the 
reading  of  the  communications. 

The  Clerk  reads  as  follows: 

Bismarck,   Dakota,   July   4th,    1889. 
To  THE  CONSTITUTIONAL  CONVENTION  OF  SOUTH  DAKOTA,  Sioux 

FALLS,  DAKOTA. 

The  Constitutional  Convention  of  North  Dakota  sends  greeting 
and  bids  you  God  speed  in  your  advance  movement  towards  state- 
hood and  full  American  citizenship.  May  the  four  new  stars  about 
to  be  added  to  the  national  flag  not  lose  in  brilliancy  through  lack 
of  care  in  laying  the  foundations  of  the  states  to  be.  Let  Washing- 
ton bring  fruits  and  flowers,  Montana  its  precious  metals  to  add  to 
the  beauty  and  wealth  of  the  nation,  while  the  Dakotas  will  bring 
wheat  and  corn  to  feed  the  people  of  the  world. 

F.  B.  FANCHER, 

President. 

Olympia,  Washington  Ter.,  July  4,  1889. 
HON.  A.  J.  EDGERTON, 

President  of  the   South   Dakota   Constitutional   Convention, 
Sioux  Falls,  Dakota. 

The  Washington  Constitutional  Convention  returns  greeting 
to  the  South  Dakota  Convention. 

The  time  is  auspicious.  The  Empire  State  of  the  Pacific 
Northwest  will  join  her  sister  in  every  onward  development. 

J.  G.  MOORE, 

Chairman. 

The  President  pro  tern:  The  next  order  of  business  under 
the  rules,  is  unfinished  business,  of  the  previous  day. 

Mr.  Caldwell:  If  I  may  be  permitted,  I  would  like  to  bring 
up  something  that  is  properly  in  the  nature  of  a  communication. 

The  President  pro  tern:  The  Convention  will  ret  urn  to  that 
order  of  business. 

Mr.  Caldwell:  The  general  government  as  it  provides  the 
two  houses  of  the  Territorial  Legislature  with  a  daily  journal,  and 
also  provides  for  the  printing  of  the  Journal  at  the  close  of  the 
session,  the  representative  of  Secretary  Richardson, — Mr.  C.  W. 
Hubbard, — has  arranged  for  the  printing,  daily,  of  the  Journal 
of  this  body,  which  will  be  paid  for  by  the  general  government ; 
and  the  communication  is  to  the  effect  that  this  will  be  printed. 


ROUTINE  15 


Now  then,  I  would  like  to  ask  for  directions  here;  that  the  Con- 
vention give  instruction  as  to  the  number  of  copies  it  would  like 
to  have,  and  that  there  be  an  arrangement  made  for  the  correction 
of  the  Journal,  in  order  that  the  daily  Journal  may  be  properly 
arranged  for  going  into  the  volumes  which  shall  be  printed.  This 
is  at  the  request  of  Mr.  Hubbard,  representing  the  Secretary  of 
the  Territory. 

The  President  pro  tern:  The  rules  now  in  operation,  (being 
the  rules  of  the  last  Convention)  provide  that  the  President  of  the 
Convention  shall  correct  the  Journal  before  presenting  it  next 
day.  This  is  a  matter  of  work  of  the  President  by  the  rules. 
If  such  rule  shall  not  be  reported  by  the  Committee  on  Rules 
when  they  report,  then  such  action  can  be  taken  by  the  Convention 
as  to  that  matter  as  they  think  advisable ;  the  present  rules  impose 
upon  the  President  that  duty. 

Mr.  Caldwell:     Dictate  the  number  of  copies  that  shall  be 
ordered  printed,  and  the  Secretary  will  liquidate  the  bill. 
*.#}     Mr.    Sterling:     In  order  that   the   matter  may   be   brought 
before  the  Convention,  I  move  that  two  hundred  copies  a  day 
be  printed,  of  the  Journal;  that  will  bring  out  an  expression. 

Mr.  Lee:     I  rise  to  second  the  motion. 

The  President  pro  tern:  Is  the  Convention  ready  for  the 
question? 

The  motion  reaching  a  vote,  prevailed. 

Mr.  Caldwell:  I  also  make  a  communication  from  the  repre- 
sentative of  the  Secretary,  to  the  effect,  that  provision  has  been 
made  for  placing  upon  the  desk  of  each  member  a  small  placard 
giving  his  name  and  county ;  that  these  will  be  furnished  at  such 
a  time  as  the  Convention  may  determine  the  location  of  its  several 
members.  I  make  this  communication  in  order  that  if  the  Conven- 
tion desires  to  have  any  different  arrangement  of  the  members, — 
to  determine  the  seats  by  lot,  it  may  be  attended  to,  so  that  once 
the  seats  of  the  various  members  be  definitely  determined  upon, 
these  placards  will  be  attached  to  the  desk,  and  so  that  it  will 
enable  members  either  in  front  or  back  to  know  who  it  is  speaking. 
I  make  this  communication  merely  for  the  convenience  of  the 
Convention. 

The  President  pro  tern:  I  think  the  Convention  understands 
the  suggestion  clearly  with  reference  to  the  cards  to  be  attached 
to  the  desks,  and  if  the  Convention  desires  to  take  any  action  in 


16  SOUTH  DAKOTA  DEBATES  1889 

regard  to  the  location  of  the    members  in  seats,  it  will  be  desirable 
to  do  that  before  this  plan  is  put  into  execution. 

Mr.  Price:  I  move  you,  Sir,  that  we  proceed  to' the  selection 
of  seats  by  lot.  I  notice  today,  the  seats  are  not  occupied  by  the 
same  members  of  the  Convention  that  they  were  yesterday  in  a 
great  many  instances ;  in  order  to  avoid  any  trouble  in  that  direction, 
I  think  this  should  be  done  without  delay. 

Mr.  Lee:  My  head  is  snowed  by  number  and  weight  of  years. 
I  am  a  little  deaf.  I  selected  this  seat ;  I  think  the  majority  selected 
seats  yesterday;  we  are  all  quite  well-fixed  here;  I  do  not  think 
we  can  better  ourselves  with  a  change;  if  we  do,  I  want  the  priv- 
ilege of  being  one  to  retain  the  seat  already  selected. 

Mr.  Xcill:  What  order  of  business  are  we  working  under  just 
now? 

The  President  pro  tern:  Communications  and  presentations 
of  petitions. 

*The  President  pro  tern:  The  gentleman  from  Hyde,  (Mr. 
Price)  does  not  seem  to  be  supported  in  his  motion,  and  the  ques- 
tion can  be  renewed  later,  if  he  desires  to  do  so. 

The  President  pro  tem:  The  Convention  will  now  give  its  at- 
tention to  unfinished  business  of  the  previous  day. 

Mr.  Neill:  I  move  we  proceed  to  the  election  of  subordinate 
officers  of  this  Convention. 

Which  motion  was  duly  seconded  and  coming  to  a  vote, 
prevailed. 

The  President  pro  tem:  The  Convention  will  now  proceed  to 
the  election  of  subordinate  officers. 

Mr.  Atkinson:  The  Act  of  Congress  under  which  we  are  at 
work,  does  not  provide  for  a  very  strong  clerical  force,  and  as  some 
of  the  subordinate  officers  will  probably  not  have  much  to  do  in 
that  line,  I  move  you  that  they  be  selected  with  the  understanding 
that  they  do  such  work  as  is  required  of  them,  even  if  it  is  not  in 
the  line  their  position  would  indicate.  The  Door  Keeper,  and 
Messengers  will  have  very  little  to  do;  we  may  as  well  select  a  man 
that  is  a  ready  penman,  that  we  might  use  him  writing  part  of 
the  time,  and  make  him  earn  his  money  ;  that  will  help  us  out. 

Which  motion  did  not  receive  a  second. 

Mr.  Edgerton,  of  Yankton:  I  place  in  nomination  for  the 
position  of  Chief  Clerk,  Rev.  F.  A.  Burdick,  of  Yankton  County. 


PERMANENT  OFFICERS  CHOSEN  17 

Mr.  Van  Eps:  I  place  in  nomination  W.  W.  Goddard,  of 
Sioux  Falls,  for  Chief  Clerk. 

The  President  pro  tern:  I  appoint  Mr.  Sterling,  of  Beadlev 
and  Mr.  Elliott,  of  Turner,  as  tellers  to  take  the  ballot. 

Mr.  Harris:  I  move  that  this  election  be  by  VIVA  VOCE  vote 
upon  calling  the  roll. 

Which  motion  prevailed. 

The  President  pro  tern:  The  motion  prevails,  and  the  Chief 
Clerk  will  be  elected  VIVA  VOCE  ;  each  member  responding  to  his 
name  as  called,  the  candidate  of  his  choice. 

As  a  result  of  said  ballot,  Mr.  Burdick  received  fifty  votes 
and  Mr.  Goddard,  twenty-one. 

The  President  pro  tern:  The  Convention  has  selected  F.  A. 
Burdick  as  Chief  Clerk. 

Mr.  Wescott:  If  it  is  in  order  to  make  a  nomination  of  En- 
rolling and  Engrossing  Clerk,  I  take  pleasure  in  placing  before  the 
Convention,  for  that  position,  Dr.  A.  W.  Hyde,  of  Brookings 
County,  a  gentleman  of  culture  and  in  my  judgment  peculiarly 
fitted  for  the  duties  of  that  office,  and  if  he  is  elected  will  honor 
the  position. 

Mr.  Harris:  I  would  place  in  nomination,  James  Kingsbury, 
of  Yankton  County. 

The  President  pro  tern:  There  being  no  dissenting  voice,  it 
will  be  taken  as  the  will  of  this  Convention  that  these  elections, 
be  by  VIVA  VOCE  vote.  You  have  as  nominees  for  the  position 
of  Enrolling  and  Engrossing  Clerk, 'Dr.  A.  W.  Hyde,  of  Brookings 
County,  and  James  Kingsbury,  of  Yankton  County;  as  your  names 
are  called,  respond  to  the  candidate  of  your  choice. 

Mr.  Hyde  received  fifty  votes,  and  Mr.  Kingsbury  nineteen, 
and  Mr.  A.  W.  Hyde  was  declared  duly  elected  to  the  position  of 
Enrolling  and  Engrossing  Clerk. 

Mr.  Corson:  I  now  move  we  proceed  to  the  election  of  Ser- 
geant-at -Arms  of  this  body ;  I  nominate  James  Carney,  of  Lawrence 
County,  for  that  position.  Mr.  Carney  is  one  of  our  old  residents, 
and  is  the  only  officer  of  the  Convention  we  are  asking  for  west  of 
the  river,  and  I  hope  he  will  receive  the  vote  of  this  Convention. 

Mr.  Van  Buskirk:  I  nominate  W.  T.  Buchanan,  of  Minnchaha 
County. 

Mr.  Price:  I  take  pleasure  in  seconding  the  nomination  of 
Mr.  Buchanan. 


18  SOUTH  DAKOTA  DEBATES,  1889. 

Nominations  being  declared  closed,  the  Convention  proceeded 
to  VIVA  VOCE  vote,  which  resulted  in  the  election  of  James  Carney 
to  the  position  of  Sergeant -at -Arms, —Tie  receiving  fifty  votes,  and 
Mr.  Buchanan,  twenty-one  votes. 

Mr.  Dickinson:  I  move  we  now  take  up  the  election  of  a 
Watchman,  and  name  E.  C.  Warner,  of  Webster,  Day  County, 
for  that  office. 

Mr.  Neill:  There  appears  to  be  no  other  nominees,  and  we 
might  expedite  matters,  by  electing  Mr.  Warner  by  acclamation; 
that  is  the  motion  I  make. 

Which  motion  was  duly  seconded. 

Mr.  Cal dwell:     Does  the  rule  permit  it? 

The  President  pro  tern:  I  do  not  know  of  any  rule  upon  the 
subject. 

The  motion  prevailed,  and  Mr.  E.  C.  Warner,  was  declared 
elected  to  the  office  of  Watchman  of  the  Convention. 

Mr.'Matson:  I  move  the  election  to  the  office  of  Messenger, 
Frank  Hoppin,  of  Iroquois. 

Mr.  Anderson:  I  place  in  nomination,  Mr.  P.  D.  Durflinger, 
of  Hand  County. 

The  President  pro  tern:  In  the  absence  of  a  motion  I  shall 
take  it  the  sense  of  the  Convention  to  proceed  as  before  to  a  VIVA 
VOCE  vote. 

Mr.  Hoppin  received  forty-eight  votes,  and  Mr.  Durflinger 
twenty-three.  Mr.  Hoppin  was  declared  elected  to  the  position 
of  Messenger  of  this  Convention. 

Mr.  Willis:  I  will  nominate  to  the  office  of  Chaplain,  Rev. 
J.  A.  Wakefield,  of  Brookings. 

Mr.  Ramsey:  I  wish  to  place  in  nomination  for  the  position 
of  Chaplain,  Bishop  Hare,  of  Sioux  Falls. 

Mr.  Wakefield  received  forty-five  votes,  and  Bishop  Hare 
twenty-six. 

The  President  pro  tern:  By  your  vote  as  announced,  Rev. 
Mr.  Wakefield  is  elected  Chaplain  of  the  Convention. 

Mr.  Sherwood:  Are  the  offices  now  all  filled?  If  that  is  the 
case,  and  it  would  be  in  order  at  this  time,  I  offer  this  resolution 
and  move  its  adoption. 

The  Constitutional  Convention  of  South  Dakota,  now  duly 
assembled  and  organized,  does  hereby  declare  on  behalf  of  the  people 
of  said  State,  that  we  do  hereby  adopt  the  Constitution  of  the 
United  States. 


DRAWING  SEATS  19 

Mr.  Caldwell:  I  am  not  certain  Mr.  President,  and  will 
simply  ask  generally  for  information,  if  he  has  consulted  the 
Organic  Act,  and  whether  or  not  this  complies  exactly  with  the 
requirements;  I  do  not  think  such  a  resolution  must  be  adopted. 

Mr.  Sherwood:  It  is  as  the  Omnibus  Bill  requires;  it  is  ex- 
actly the  language  of  the  section.  (Reading  from  the  Act.) 

The  President  pro  tern:  The  gentleman  moves  the  adoption 
of  this  resolution  as  read  by  the  Clerk. 

Mr.  Neill:  I  suggest  that  that  be  adopted  by  rising  vote. 
Which  suggestion  was  acted  upon  without  objection. 

The  President  pro  tern:  Seventy-three  gentlemen  have 
voted,  and  all  have  voted  in  the  affirmative.  The  resolution  is 
unanimously  adopted. 

The  President  pro  tern:  We  will  now  pass  to  the  order  of 
business.  Unfinished  business. 

A  Member:  I  move  that  each  delegate  be  allowed  to  write 
his  name  upon  the  desk  blotter  on  the  desk  in  which  he  prefers 
to  sit  (unless  there  are  members  who  wish  to  change)  and  then 
the  cards  that  are  presented  can  be  fastened  upon  the  desks  and 
compared  with  the  names  so  written,  as  suggested  by  Mr.  Caldwell, 
of  Minnehaha. 

Mr.  Lee:  Would  it  not  be  well  to  have  those  of  the  same 
county  delegation  sit  near  each  other;  would  not  it  be  well  to  have 
a  few  changes. 

Mr.  Caldwell:  I  believe  it  will  give  better  satisfaction  if 
there  should  be  a  determination  of  seats  by  lot.  The  custom  in 
at  least  the  Territorial  Legislature,  I  believe  is,  that  the  number 
of  seats  to  be  drawn  are  written  upon  ballots,  put  into  a  box,  and 
that  they  are  then  drawn  out,  then  the  one  who  gets  the  first 
number  has  the  choice;  it  is  not  that  he  draws  a  seat  per  number 
but  that  he  draws  a  choice;  I  believe  that  will  be  more  satisfactory. 

The  President  pro  tem:  The  gentleman  at  my  right  made 
a  motion,  but  it  is  not  before  the  Convention. 

Mr.  Neill:  I  rise  to  a  point  of  order;  some  of  these  motions 
being  made  out  of  the  order  of  business;  this  all  comes  up  in  the 
proper  place.  We  now  have  the  matter  of  unfinished  business. 

The  President  pro  tem:  The  Chair  entertained  that  business 
as  long  as  no  objection  was  made;  if  the  gentleman  will  let  his 
motion  remain  until  \vc  reach  that  order  of  business. 


20  SOUTH  DAKOTA  DEBATES  1889 

The  President  pro  tem:  The  report  of  select  committees  is 
called  for. 

Mr.  Jolley:  The  committee  on  rules  have  met  and  agreed 
substantially  upon  the  rules  that  they  will  submit  for  the  consid- 
eration of  this  convention.  That  they  will  differ  but  slightly  from 
the  rules  of  1885  convention,  and  the  result  is  that  the  rules  that  the 
committee  are  going  to  report  will  have  to  be  adopted.  (Laughter.) 

We  have  met  this  dilemma  in  the  Committee ;  we  find  we  have 
not  a  gentleman  on  this  Committee  who  can  write ;  we  will  probably 
be  ready  to  report  for  the  consideration  of  this  Convention  to- 
morrow afternoon;  there  is  one  branch  upon  which  the  Committee 
are  agreed,  and  I  am  instructed  to  report  this  afternoon,  and  this 
is  substantially  the  views  of  the  Committee. 

Sioux  Falls,  Dak.,  July  5th.   1889. 
MR.  PRESIDENT: 

Your  Committee  on  Rules  have  instructed  me  to  report  that 
the  Joint  Commission  on  the  part  of  South  Dakota  to  agree  upon 
an  equitable  division  of  all  property  belonging  to  the  Territory  of 
Dakota,  the  disposition  of  all  public  records  and  adjust  and  agree 
upon  the  amounts  of  debts  and  liabilities  of  the  Territory  shall 
consist  of  seven  members,  to  be  appointed  by  the  President  of  this 
Convention;  that  said  Commission  be  entitled  to  a  clerk,  and  to 
employ  such  assistance  as  they  sha^l  deem  necessary. 

JOHN  L.  JOLLEY, 

Chairman. 

Mr.  Jolley:  For  the  purpose  of  bringing  this  report  before 
the  Convention,  I  move  you,  Sir,  that  the  report  be  adopted. 

Mr.  Neill:     I  second  the  adoption  of  the  report. 

The  President  pro  tem:  You  have  heard  the  report  of  the 
Committee  on  Rules;  the  question  before  the  Convention  is  upon 
the  adoption  of  this  report  just  read  to  you  by  Mr.  Jolley. 

Mr:  Jolley:  That  part  of  the  report, — that  on  which  this  rule* 
is  founded  is  Section  Six  of  the  Omnibus  Bill,  which  reads  as 
follows: 

It  shall  be  the  duty  of  the  Constitutional  Conventions  of  North 
and  South  Dakota  to  appoint  a  joint  commission,  to  be  composed 
of  not  less  than  three  members  of  each  Convention,  whose  duty  it 
shall  be  to  assemble  at  Bismarck,  the  present  seat  of  government  of 
said  Territory,  and  agree  upon  an  equitable  division  of  all  property 
belonging  to  the  Territory,  of  Dakota,  the  disposition  of  all  public 
records,  and  also  adjust  and  agree  upon  the  amount  of  the  debts 
and  liabilities  of  the  Territory,  which  shall  be  assumed  and  paid  by 


JOINT  COMMISSION  21 


each  of  the  proposed  States  of  North  Dakota  and  South  Dakota; 
and  the  agreement  reached  respecting  the  territorial  debts  and 
liabilities  shall  be  incorporated  in  the  respective  constitutions, 
and  each  of  said  States  shall  oblige  itself  to  pay  its  proportion  of 
such  debts  and  liabilities  the  same  as  if  they  had  been  created  by 
such  States  respectively. 

The  Committee  have  instructed  me  to  report  verbally  that 
they  considered  this  matter  this  morning  and  did  not  deem  it  part 
of  their  duty,  and  did  not  deem  it  the  part  of  prudence  to  consult 
North  Dakota  before  selecting  this  number.  It  is  not  one  of 
those  things  to  be  considered ;  suppose  North  Dakota  had  ten,  and 
South  Dakota  had  seven  members  of  that  Commissoin,  it  is  for 
each  of  these  states  to  say  whether  they  will  adopt  the  report 
which  is  agreed  to  by  the  Commission  coming  from  each  one  of 
these  states.  After  consultation  with  a  number  of  the  members 
of  the  Convention,  the  highest  number  asked  for  by  any  of  the 
members  of  the  Committee  was  placed  at  seven;  the  Committee 
reported  seven;  that  they  should  proceed  as  quick  as  they  are 
named,  to  Bismarck  and  at  once  agree  upon  the  division;  when 
that  is  made,  then  it  comes  before  this  Convention  whether  it 
will  adopt  their  report.  Mr.  President,  it  is  desirable  and  you 
assume  the  responsibility  of  appointing  the  committee  recommended 
I  should  not  like  to  stand  in  the  way ,  or  hinder  a  speedy  settlement 
of  the  matter,  that  we  may  get  the  report  of  this  Commission 
before  us.  If  there  is  hurry  necessary,  I  certainly  shall  not  in 
Convention  delay  this  action;  the  Committee  before  considered 
this  matter  fully  and  now  ask  your  consideration  of  the  report ; 
I  am  certainly  in  favor  of  receiving  the  report  and  relieving  the 
Committee  from  a  portion  of  their  work.  I  would  like  to  explain  a 
little  further  why  we  made  the  number,  "seven".  We  said  if 
three  politicians  went  up  there  and  made  a  settlement,  they  would 
be  in  a  sort  of  political  purgatory  at  once;  and  it  was  not  safe  to 
serve  any  body  of  green  politicians  that  way ;  there  are  seventy-five 
members  of  that  Convention,  and  if  they  have  but  three  members 
of  that  Commission  there  would  be  seventy-two  others  behind  them ; 
for  moral  force;  we  felt  we  ought  to  have  just  as. heavy  moral  force 
behind  our  men  proportionately  as  they  have  behind  theirs;  we 
believe  that  these  gentlemen  going  into  the  face  of  another  Con- 
vention ought  to  have  the  moral  force  of  numbers  and  therefore, 
we  unanimously,  on  that  ground,  settled  the  number  at  seven. 

Mr.  Hartley:     I  rise  to  a  point  of  order;  as  I  understand  the 


22  SOUTH  DAKOTA  DEBATES  1889 

first  motion  will  be  received  instead  of  being  adopted;  I  therefore 
move  that  this  report  of  this  Committee  be  received. 

The  President  pro  tern:  The  Chair  did  not  understand  the 
point  of  order ;  this  is  a  report  of  a  select  committee  presented  and 
read  to  the  Convention;  it  is  received  without  action  on  the  part 
of  the  Convention;  the  Chair  so  understands  it. 

Mr.  Peck:  I  will  move  as  a  substitute,  that  the  report  be 
received  and  the  adoption  remain  an  after  consideraion. 

The  President  pro  tern:  It  is  moved  that  the  report  simply 
be  received  by  this  Convention.  Are  you  ready  for  the  question 
on  the  amendment? 

Mr.  Jolley:  There  can  be  no  question  about  the  parlimentary 
practice  on  such  a  motion  as  that  (?)  When  this  Convention  ap- 
points a  committee  and  asks  a  report  at  its  hands  and  they  present 
that  report,  it  would  be  the  heighth  of  discourtesy  to  make  a 
motion  to  receive  it;  if  the  gentlemen  do  not  like  this  report,  or  if 
there  is  anything  wrong  about  it,  they  can  correct  it;  the  proper 
way  is  to  vote  it  down  or  either  send  it  back  to  that  Committee,  or 
another  one,  but  to  refuse  to  receive  the  work  of  a  committee  asked 
to  make  a  special  report  is  folly. 

The  President  pro  tern:  The  Chair  has  already  expressed  its 
opinion. 

Mr.  Lee:  It  is  a  distinction  without  a  difference  which  is 
not  right ;  the  question  now  is  upon  the  adoption  of  the  amendment. 
I  move  you  that  clause  of  the  resolution  authorizing  a  clerk,  be 
stricken  out,  for  the  reason  there  is  no  provision  for  paying  this 
clerk ;  it  is  too  much  to  ask  a  man  to  go  up  there  and  pay  his  own 
expenses. 

Mr.  Clough:  If  it  is  in  order,  we  believe  that  there  is  provision 
for  the  payment  of  this  clerk,  and  believing  that  the  provision  is 
in  this  matter,  we  may  mention,  the  Commission  will  have  to  have 
maybe,  two  or  three  clerks ;  the  work  of  the  Commission  will  re- 
quire a  great  amount  of  accountant  work. 

The  President  pro  tern:  The  question  as  to  an  appropriation 
for  a  clerk  is  not  before  the  House ;  it  is  out  of  order ;  the  question 
is  now  upon  the  adoption  of  the  amendment  of  the  gentleman 
substituting  the  term  "receive"  this  report  for  its  adoption. 

Mr.  Peck:  I  would  like  to  inquire  whether  receiving  this  re- 
port, adopts  it,  or  whether  receiving  it  leaves  the  adoption  of  it 
until  bye  and  bye,  and  leaves  the  power  of  appointing  this  Com- 


JOINT  COMMISSION  23 


mittee  unsettled.  My  understanding  is,  if  we  receive  this  report, 
it  lays  there  for  consideration  by  the  Convention.  If  we  adopt 
it,  it  is  past  consideration. 

The  President  pro  tern:  This  report  is  received  when  it  is 
accepted, — when  it  is  returned  to  this  Convention  and  read,  it  is 
then  received;  then  action  is  taken  as  to  its  adoption  or  non- 
adoption;  does  the  gentleman  insist  upon  the  motion  that  the  re- 
port shall  be  received?  The  opinion  of  the  Chair  is,  that  the 
motion  is  out  of  order,  but  the  Chair  is  disposed  to  put  it.  The 
Chair  is  now  going  upon  the  theory  of  the  mover  of  this  motion, 
that  this  will  not  in  any  way  commit  the  Convention  to  the  action 
suggested  in  the  report  but  simply  allows  this  Committee  to  make 
this  report  to  us. 

Mr.  Peck:  If  you  will  allow  me  to  say,  we  have  already  re- 
ceived this  report, — what  I  desire  to  do  is  not  to  part  with  my 
right  and  privilege  to  look  this  over  and  a  little  further  consider 
the  matter  before  it  passes  out  of  my  hands, — and  if  it  is  a  fact 
we  have  received  it  already,  and  must  vote  upon  the  resolution 
that  is  the  end  of  it  so  far  as  we  are  concerned;  and  this  is  action 
by  the  Convention  that  would  almost  force  me  to  move  that  it 
lay  upon  the  table  until  tomorrow,  to  accomplish  my  desire;  all 
I  want  is  to  get  a  little  time  to  consider  the  matter  that  the  Com- 
mittee have  had  before  them. 

Mr.  Wescott:  I  second  the  motion  of  Mr.  Peck,  (of  Hamlin) 
that  it  lay  upon  the  table. 

Mr.  Jolley:  I  rise  to  a  point  of  order,  that  the  motion  is  out 
of  order. 

Which  point  of  order  was  sustained  by  the  Chair. 
Mr.  Price:  I  move  you,  Sir,  that  the  consideration  of  the 
resolution  as  presented,  be  made  a  special  order  for  tomorrow  after 
this  body  convenes.  It  is  a  matter  of  a  great  deal  of  importance 
and  something  that  should  be  considered  carefully.  There  is 
another  question  involved  in  this  matter  and  the  members  ought 
to  have  plenty  of  time  to  think  about  it.  It  is  this  question, 
whether  or  not  under  the  provisions  of  the  Omnibus  Bill  you  can 
delegate  the  power  to  the  President  of  this  Convention  to  appoint 
this  Commission.  I  am  not  ready  to  say  we  can !  I  think  we  should 
thoroughly  investigate  this  matter. 

Mr.  Jolley:     On  behalf  of  the  Committee,  would  say,  we  are 


24  SOUTH  DAKOTA  DEBATES  1889 

glad  the  motion  has  been  made  to  postpone  action.  So  far  as  the 
suggestion  made  by  Mr.  Price,  that  question  presented  itself  to 
the  Committee  and  we  took  this  view  of  it,  by  presenting  the  report 
that  we  did  to  the  Convention,  and  the  Convention  adopting  that 
report, — if  they  did  adopt  it, — made  it  the  action  of  the  Conven- 
tion, to  delegate  the  power  to  the  President  to  appoint  the  Com- 
mission ;  if  that  was  not  sufficient  power,  then  after  the  Commission 
had  been  appointed  by  the  Chair,  to  have  the  Convention  ratify 
that  again. 

Mr.  Atkinson:  I  have  no  objection  as  to  this  delay  in  this 
matter,  but  it  seems  to  me  that  this  Committee  should  be  ap- 
pointed at  the  earliest  possible  moment  and  be  on  their  way  to 
Bismarck.  It  seems  to  me  that  we  might  arrange  these  matters 
now,  as  far  as  the  difference  in  opinion  as  to  whether  the  President" 
appoint  or  the  Convention  elect ;  we  can  in  a  short  time  elect  them 
this  afternoon.  Let  them  be  appointed  and  let  them  be  on  their 
way.  This  delay  is  expensive. 

Mr.  Wood:  The  suggestion  of  the  gentleman  with  reference 
to  the  cost  of  delay  is  not  important  if  my  position  is  correct;  I 
have  been  advised  of  the  fact  that  the  Convention  at  Bismarck  is 
not  fully  organized  and  its  organization  will  not  be  completed 
before  Monday,  consequently  if  our  Commission  should  arrive  before 
Tuesday,  it  will  have  to  wait  at  Bismarck.  The  proposition  sug- 
gested by  my  friend,  Mr.  Price,  is  a  matter  that  presented  itself 
to  the  Committee  and  so  far  as  I  am  concerned,  I'  would  like  to 
hear  it  discussed  in  the  Convention.  There  may  be  a  question 
of  delegation  of  power.  The  Committee  of  course  considered  the 
proposition;  I  would  like  to  have  the  members  of  the  Convention 
consider  it  for  the  purpose  of  making  assurance  doubly  sure  that 
we  make  no  mistake  in  that  regard.  We  had  better  take  until 
tomorrow.  I  would  not  cause  delay,  but  it  is  evidently  the  sense 
of  the  Committee  that  we  take  a  little  time  to  consider  this  matter ; 
today  is  Friday,  tomorrow  is  Saturday,  and  you  could  not  get 
started  the  way  the  trains  run  to  Bismarck.  As  a  matter  of  fact 
you  will  gain  nothing  by  acting  today.  Sunday  comes  before  you 
could  reach  Bismarck.  I  think  the  opinion  is  almost  unanimous 
that  the  matter  rest  until  tomorrow  and  give  the  gentlemen  this 
time  to  examine  the  matter  thoroughly  and  discuss  it. 

Mr.  Humphrey:  If  the  only  question  at  issue  is  the  question 
of  the  authority  of  the  Convention  to  confer  upon  the  President 


JOINT  COMMISSION  25 


the  power  to  appoint, — said  appointments  to  be  ratified  by  the 
Convention, — it  would  save  time  that  might  perhaps  be  more 
profitable  to  give  to  the  President  in  making  his  selection  of  the 
members  of  that  Committee,  if  this  is  disposed  of  at  this  hour. 
Mr.  President,  it  is  not  probable  that  the  appointment  would  be 
made  in  time  for  the  Commission  to  leave  for  Bismarck  before 
Monday  or  Tuesday ;  it  is  not  probable  that  he  would  appoint  them 
in  a  moment ;  it  is  not  probable  that  he  would  appoint  them  before 
sometime  tomorrow,  at  the  earliest  time,  and  if  this  is  the  only 
question  involved  to  necessitate  delay,  it  seems  to  me  it  might 
be  overcome  by  adding  these  words  "said  appointments  to  be  rati- 
fied by  this  Convention".  I  would  move  you  Mr.  President,  if 
it  is  in  order  to  place  a  motion  before  the  House  to  that  effect, 
that  the  words,  "said  appointments  to  be  ratified  by  this  Con- 
vention" be  added  to  the  report  of  the  Committee  on  Rules. 

Mr.  Spooner:  I  support  the  original  motion;  I  think  this 
should  be  a  matter  of  mutual  consideration;  the  Committee  have 
had  an  opportunity  to  consider  it,  and  the  Convention  desires  the 
same  opportunity. 

The  President  pro  tern:  The  question  is  upon  making  this 
partial  report  of  the  Committee  on  Rules  the  special  order  for  to- 
morrow. 

Which  motion  prevailed  unanimously. 

The  President  pro  tern:  The  next  order  of  business  to  occupy 
the  attention  of  this  Convention  will  be  consideration  of  reports 
of  standing  committees. 

Mr.  Price:  I  desire  to  present  a  matter  which  I  think  of  con- 
siderable importance,  to  the  two  states  about  to  be  formed,  and 
one  upon  which  action  should  be  taken;  that  is  relative,  Mr.  Presi- 
dent, to  the  boundaries  of  the  two  new  states.  You  will  remember, 
Sir,  that  the  Omnibus  Bill  provides  that  the  boundary  shall  be 
changed  from  the  Forty-sixth  Parallel  to  the  Seventh  Standard 
Parallel.  It  is  true,  Sir,  that  there  are  two  Seventh  Standard 
Parallels  in  Dakota  Territory ;  a  fact  which  may  not  generally  be 
known.  It  seems  to  me  that  this  is  a  matter  of  great  importance ; 
that  in  defining  the  boundaries  bewteen  North  and  South  Dakota, 
it  ought  to  have  the  careful  attention  of  this  Convention.  I  say.  it 
is  fraught  with  importance  for  this  reason;  there  are  two  Seventh 
Standard  Parallels  well  defined,  and  both  of  them  have  been  en- 
dorsed and  reported,  and  have  been  through  the  Interior  Depart- 


26  SOUTH  DAKOTA  DEBATES  1889 

merit,  adopted.  I  have  before  me  a  diagram  showing  the  exact 
condition  of  things  relative  to  this  matter,  prepared  by  the  Surveyor 
General  of  Dakota,  together  with  a  letter  of  explanation,  which 
enters  into  the  full  details  of  the  whole  matter.  It  seems  to  me 
that  if  this  question  is  not  decided  between  the  Conventions  of 
both  North  and  South  Dakota  and  boundary  lines  agreed  upon, 
well  defined  and  interpreted,  endless  trouble  and  litigation  will 
grow  out  of  it.  It  is  true  if  we  shall  adopt  and  unanimously 
declare  the  7th  Standard  the  boundary,  North  Dakota  can  claim 
one  and  South  Dakota,  the  other,  both  approved  by  general  gov- 
ernment. Another  thing  to  be  taken  into  consideration  by  this 
Convention  especially  is  this ;  that  if  a  general  plank  shall  go  into 
this  Constitution  proclaiming  and  declaring  the  7th  Standard 
Parallel  the  boundary  line,  North  Dakota  will  get  a  great  many 
acres  of  land  which  does  not  belong  to  her,  and  in  that  land  are 
several  school  sections  which  sometime  we  hope  will  be  very  val- 
uable ;  but  without  discussing  this  matter  further,  1  desire  to  move 
that  a  commission  consisting  of  three  members  be  appointed  by 
the  Chairman  of  this  Convention  to  confer  with  a  similar  committee 
to  be  requested  to  be  appointed  by  the  North  Dakota  Convention, 
to  determine  upon  and  define  the  boundaries  of  this  Territory.  I 
will  "suggest  this  further  that  I  have  before  me  a  complete  diagram 
of  the  whole  matter  and  have  a  letter  which  explains  the  whole 
matter  in  its  fullest  details  and  the  Committee  whoever  may  be 
appointed  especially,  shall  have  the  use  of  them. 

Mr.  Elliott:     I  second  the  motion. 

Mr.  Sherwood:  It  seems  to  me  as  this  is  a  new  matter  also 
coming  before  the  Convention,  and  as  it  seems  new  matter  entirely, 
to  all  of  us,  that  this  should  bear  consideration  as  well  as  the  matter 
we  have  already  considered.  If  the  other  needs  consideration, 
and  if  we  are  to  send  a  commission  to  North  Dakota  to  settle  other 
differences,  why  would  it  not  be  weir  to  incorporate  into  their 
duties  the  settlement  of  this  difference?  I  also  move  that  this 
matter  be  made  a  special  order  of  business  for  tomorrow. 

Mr.  Price:     I  will  consent  that  it  be  made  a  special  order. 

Mr.  Dickinson;  I  move  you  that  a  committee  of  five  be 
appointed  by  the  Chair  to  take  this  matter  under  consideration 
to  report  tomorrow  as  to  the  facts  in  the  case  as  they  find  them, 
with  recommendations. 

Mr.  Neill:     I  think  we  will  b,e  under  the  necessity  of  placing 


ADJOURNED  27 


a  great  many  committees,  and  we  are  forestalling  the  work  of  our 
Committee  on  Order  of  Business.  The  best  thing  we  can  do  at 
the  present  time,  is  to  adjourn  at  once  and  wait  for  their  report. 
I  move  we  do  now  adjourn. 

Mr.  Clough:  I  move  that  when  we  do  adjourn,  it  be  until 
two  o'clock. 

Mr.  Neill:     I  accept  that. 

The  motion  to  adjourn,  coming  to  a  vote,  a  rising  vote  was 
called  for,  which  resulted  in  forty-one  votes  in  the  affirmative 
and  nineteen  votes  in  the  negative,  and  the  Convention  stands 
adjourned  until  two  'o'clock,,  tomorrow  afternoon. 


THIRD  DAY. 

Sioux  Falls,  Dak.,  July  6th,  1889. 

Two  o'clock  P.  M. 

The  Hon.  A.  J.  Edgerton,  President,  in  the  chair. 

The  President  of  the  Convention:  The  Convention  will  be 
in  order. 

Prayer  by  the  Chaplain  as  follows: 

Our  Father  who  art  in  Heaven,  at  the  beginning  of  this  session 
come  we  before  Thee  to  ask  Thy  guidance  and  Thy  care;  we  will 
thank  Thee  in  every  word,  in  every  thought  and  in  every  deed,  and 
may  all  be  done  to  the  good  of  Thy  people  and  to  Thy  glory.  Help 
us  to  remember  that  the  fear  of  the  Lord  is  the  beginning  of  wisdom ; 
and  do  Thou  graciously  bless  us  with  the  wisdom  that  will  enable 
us  to  so  direct,  that  ours  shall  be  the  credit  and  our  posterity  shall 
receive  the  benefit  from  this,  our  government,  by  us  established. 
Give  us  Thy  divine  care,  in  Jesus  name, 
AMEN. 

The  President  of  the  Convention:  Reading  of  the  Journal 
of  yesterday. 

The  Chief  Clerk  read  the  Journal  of  yesterday. 

The  President  of  the  Convention:  Are  there  any  corrections 
to  be  made  in  the  Journal. 

Hearing  none  the  Journal  is  approved. 

Mr.  Coats,  of  Minnehaha,  has  not  been  sworn  in,  and  if  there 
is  no  objection  he  will  now  be  sworn  in  as  a  member  of  this  Con- 
vention. 

The  following  oath  was  administered  to  Mr.  Coats,  of  Minne- 
haha, by  Joe  Kirby,  Esq.,  Notary  Public. 

You  do  solemnly  swear  that  you  will  support  the  Constitution 
of  the  United  States,  and  that  as  a  member  of  this  Convention, 
you,  under  the  Act  of  Congress,  enabling  South  Dakota  to  be  ad- 
mitted as  a  State  of  the  Union,  will  well  and  faithfully  discharge 
the  duties  of  that  office  according  to  your  best  learning  and  dis- 


GREETING   FROM   MONTANA  29 

cretion,  with  all  good  fidelity  to  yourself  as  well  as  to  the  people. 
So  help  you  God. 

The  President  of  the  Convention:  I  will  ask  the  Clerk  to 
read  a  communication  received  from  the  President  of  the  Constitu- 
tional Convention  of  Montana. 

The  Chief  Clerk  read  the  communication  as  follows: 

Helena,  Montana,  July   5th,   1889. 
To  Hon.  A.  J.  EDGERTOX: 

Montana,  standing  on  the  threshold  of  statehood,  reciprocates 
your  cordial  greeting,  and  indulges  the  hope  that  the  Constitution 
which  you  have  met  to  frame  may  be  based  upon  the  virtues  and 
intelligence  of  the  people,  and  when  so  framed,  it  may  survive  the 
years  to  come  in  all  its  vigor,  unimpaired,  until  a  hundred  sovereign 
states  have  been  erected  into  one  confederacy,  there  to  remain  an 
indestructible  and  indissoluble  union. 
(Signed:)  J.  K.  TOOLE, 

Temporary  Chairman. 

(Applause.) 

The  President  of  the  Convention:  What  is  the  further  busi- 
ness before  the  Convention?  I  am  informed  that  there  is  a  special 
order  made  for  this  afternoon  at  two  o'clock. 

Mr.  Neill,  of  Grant:  Mr.  President,  that  was  not  set  at  any 
hour,  and  I  think  it  should  properly  come  in  after  the  report  of 
the  Committee  on  Rules. 

Mr.  Caldwell,  of  Minnehaha:  Mr.  Chairman,  has  the  roll  been 
called? 

The  President  of  the  Convention:  The  Chief  Clerk  will  call 
the  roll. 

Mr.  Neill,  of  Grant:  Mr.  Chairman,  I  move  the  calling  of 
the  roll  be  dispensed  with. 

The  President  of  the  Convention:  It  will  be  so  ordered  unless 
objection  is  made. 

What  is  the  further  pleasure  of  the  Convention? 

Mr.  Jolley,  of  Clay:  Mr.  President:  Yesterday  afternoon 
just  before  we  adjourned,  there  was  a  motion  made  to  postpone 
the  consideration  of  the  report  of  the  Committee  on  Rules  until 
today,  and  there  was  no  hour  specified  at  which  the  report  should 
be  taken  up.  The  situation  is  this:  The  Committee  made  a 
partial  report;  the  report  of  the  number  of  employees  they  would 
ask  to  be  appointed  by  this  Convention,  and  a  motion  was  made 
to  adopt  the  report,  and  that  is  the  question  to  come  up  at  this 
time. 


30  SOUTH  DAKOTA  DEBATES  1889 

The  President  of  the  Convention:  The  report  has  been  read 
to  the  Convention? 

Mr.  Jolley,  of  Clay:     Yes,  sir. 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question? 

Mr.  Kellam,  of  Brule:  Mr.  President,  there  has  been  a  diversity 
of  views  expressed  upon  this  question  of  the  number  and  the  forma- 
tion of  this  commission,  and  it  migth  result  in  a  discussion  which 
would  make  a  voluminous  and  expensive  report  to  print.  I  there- 
fore move  that  the  Convention  now  go  into  committee  of  the  Whole 
for  the  consideration  of  the  report  of  the  Committee  on  Rules,  so 
far  as  made. 

A  Voice:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  Convention  do  now  go  into  committee  of  the  Whole  for  the  con- 
sideration of  the  report  of  the  Committee  on  Rules  so  far  as  made. 
Is  the  Convention  ready  for  the  question?  Those  of  the  opinion 
that  the  motion  prevail  will  say  aye;  those  opposed  no.  The 
motion  is  carried.  I  will  call  Mr.  Sterling,  of  Spink,  to  the  chair. 

Mr.  Sterling,  of  Spink,  took  the  chair. 

Mr.  Price,  of  Hyde:  Mr.  Chairman,  at  this  time  I  will  call 
for  the  reading  of  the  report  of  the  Committee  as  presented  yesterday. 

The  Chairman  of  the  Committe  -.  of  the  Whole ;  The  Clerk 
will  read  the  report. 

The  report  of  the  Committee  on  Rules,  as  submitted  yesterday, 
was  read  by  the  Chief  Clerk. 

The  Chairman  of  the  Committee  of  the  Whole:  What  will 
the  Committee  do  with  the  report? 

Mr.  Jolley,  of  Clay:  Mr.  Chairman,  I  move  that  the  report 
of  the  Committee  be  adopted. 

A  Delegate:     I  second  the  motion. 

The  Chairman  of  the  Committee  of  the  Whole:  Gentlemen, 
you  have  heard  the  motion  that  the  report  of  the  Committee  be 
adopted.  Are  you  ready  for  the  question? 

Mr.  Atkinson,  of  Brookings:  Mr.  President,  I  would  like  to 
move  an  amendment  to  strike  out  as  much  of  it  as  authorizes  them 
to  employ  a  clerk,  for  the  reason  that  there  is  no  provision  made  to 
pay  this  clerk. 

Mr.  Jolley,  of  Clay:  Mr.  Chairman,  I  would  like  to  change 
my  motion.  I  move  that  this  Committee  be  instructed  to  report  to 


CONSIDERATION  OF  RULES  31 

the  Convention  and  recommend  that  the  report  be  adopted. 

The  Chairman  of  the  Committee  of  the  Whole:  Exactly. 
There  is  no  second  to  the  motion  to  amend  the  motion. 

Mr.  Wood,  of  Pennington:     I  second  the  motion. 

Mr.  Jolley,  of  Clay:     You  second  the  amendment? 

Mr.  Wood,  of  Pennington:     No,  sir. 

By  the  Chief  Clerk  of  the  Convention:  Mr.  Chairman,  may 
I  suggest  that  by  the  rules  all  motions  and  amendments  shall 
be  reduced  to  writing. 

Mr.  Jolley,  of  Clay:  Yes,  but  not  upon  the  suggestion  of 
the  Chief  Clerk,  Mr.  Chairman,  but  by  the  President  or  any  of  the 
members!  (Laughter.) 

The  Chairman  of  the  Committee  of  the  Whole:  You  have 
heard  the  motion  and  the  amendment — 

Mr.  Wood,  of  Pennington:  Mr.  Chairman,  I  did  not  second 
the  amendment  but  the  motion. 

The  Chairman  of  the  Committee  of  the  Whole:  Very  well,  I 
did  not  so  understand  it.  The  question  is  upon  the  motion  to 
adopt  the  report  of  this  Committee.  Those  of  the  opinion  that 
the  motion  prevail  will  say  aye;  those  opposed  will  say  no. 

The  motion  is  carried. 

Mr.  Jolley,  of  Clay:  Mr.  Chairman,  there  is  no  instruction 
for  this  Chairman  to  report  to  the  President  as  yet.  I  was  just 
going  to  move  that  the  Committee  rise  and  report  to  the  Convention 
and  recommend  that  the  report  be  adopted. 

A  Delegate:     I  second  the  motion. 

The  Chairman  of  the  Committee  of  the  Whole:  It  is  moved 
that  the  Committee  of  the  Whole  now  rise  and  report  to  the  Con- 
vention and  recommend  that  the  report  of  the  Committee  on  rules 
be  adopted.  Are  you  ready  for  the  question?  Those  in  favor 
of  this  motion  will  say  aye;  those  opposed  no.  The  ayes  have  it 
and  the  motion  prevails. 

The  President  of  the  Convention  resumed  the  Chair. 

Mr.  Sterling,  of  Spink:  Mr.  President,  I  have  to  report  to 
the  President  of  the  Convention  that  the  Committee  of  the  Whole 
have  had  under  consideration  and  recommend  to  the  Convention 
the  adoption  of  the  report  of  the  Committee  on  Rules. 

The  President  of  the  Convention:  Gentlemen  of  the  Con- 
vention, the  Chairman  of  the  Committee  of  the  Whole,  reports 
that  the  Committee  of  the  Whole  have  had  under  consideration 


32  SOUTH  DAKOTA  DEBATES  1889 

and  recommends  to  the  Convention  the  adoption  of  the  report 
of  the  Committee  on  Rules.  Are  you  ready  for  the  question? 
Those  of  the  opinion  that  the  motion  prevail  will  say  aye;  those 
opposed  no. 

The  ayes  have  it  and  the  motion  prevails. 

The  President  of  the  Convention:  I  was  not  here  yesterday. 
Did  I  understand  the  Chairman  of  the  Committee  on  Rules  to  state 
that  the  Committee  on  Rules  was  ready  to  make  a  further  report  ? 

Mr.  Jolley,  of  Clay:  Yes,  Sir,  we  are  ready,  Mr.  President, 
to  report  when  that  order  is  reached.  That  report  that  has  just 
been  adopted  was  made  a  special  order. 

Mr.  Sherwood,  of  Clark:  Mr.  President,  there  was  another 
matter  made  a  special  order  for  this  time. 

The  President  of  the  Convention:  Was  there  another  special 
order,  Mr.  Clerk? 

The  Chief  Clerk  read  from  the  Journal  of  yesterday,  as  follows: 
"Mr.  Price  moved  the  appointment  of  a  commission  of  three  to 
confer  with  a  like  commission  from  the  Constitutional  Convention 
of  North  Dakota,  to  definitely  determine  the  boundary  between 
the  two  states." 

The  President  of  the  Convention:  The  time  for  the  consid- 
eration of  the  special  order  has  arrived. 

Mr.  Price,  of  Hyde:  Mr.  President,  I  desire  at  this  time  to 
withdraw,  that  motion  creating  a  special  committee  to  consult 
with  a  like  committee  of  the  North  Dakota  Convention,  with  the 
consent  of  the  second. 

A  Delegate:     I  consent  .to  it. 

Mr.  Price,  of  Hyde:  Mr.  President,  now  Sir,  I  desire  to  move 
that  the  whole  matter  relating  to  boundary  be  referred  to  a  special 
committee  to  report  to  this  Convention  as  soon  as  they  can,  and 
that  that  committee  be  empowered  to  send  for  persons  and  papers, 
or  the  Surveyor  General  or  anybody  else  they  desire  to  consult 
in  regard  to  the  matter. 

A  Delegate:     I  second  that  motion. 

Mr.  Neill,  of  Grant:  Mr  Chairman,  I  am  opposed  to  raising 
special  committees  where  it  properly  falls  within  the  channel  of 
the  regular  committee.  We  have  been  anticipating  these  matters 
somewhat  and  we  have  adopted  our  standing  committees.  The 
report  will  soon  be  made.  This  matter  can  be  referred  to  the  proper 


BOUNDARIES  33 


committee.     I  move  you  that  this  entire  matter  be  referred  to  the 
regular  standing  committee  when  it  is  appointed, 

Mr.  Price,  of  Hyde:     I  accept  the  amendment  Mr.  Chairman. 

By  the  President  of  the  Convention:  It  is  moved  that  the 
question  of  boundary  be  referred  to  the  standing  Committee  on 
Boundaries.  Are  you  ready  for  the  question?  Those  of  the 
opinion  that  the  motion  prevail  will  say  aye;  those  opposed  say  no. 

The  ayes  have  it  and  the  motion  prevails. 

The  question  of  boundaries  is  referred  to  the  Committee  on 
Boundaries. 

The  President  of  the  Convention:  I  understand  that  the 
Committee  on  Rules  is  ready  to  make  their  further  report. 

Mr.  Jolley,  of  Clay:  Mr.  President,  the  Committee  on  Rules 
have  instructed  me  to  make  their  report — in  fact  they  make  the 
report  themselves.  This  morning  at  the  meeting  of  the  Committee 
this  report  was  read  and  signed  by  all  the  members.  Since  it 
has  been  signed,  on  Rule  No.  11  there  will  be  a  minority  report. 
The  rules  as  ordered  reported  by  the  Committee  are  as  follows: 

Here  Mr.  Jolley  read  the  report  of  the  Committee  on  Rules 
with  reference  to  the  number  of  members  to  constitute  the  joint 
commission,  and  the  introductory  part  of  the  report  of  the  same 
Committee,  with  reference  to  standing  committees. 

Mr.  Jolley,  of  Clay:  (Continuing.)  With  reference  to  this 
first  committee,  the  Committee  on  Judiciary,  touching  members, 
the  understanding  of  the  Committee,  which  of  course  does  not 
bind  the  Convention,  was  that  two  members  should  be  appointed 
from  each  Judicial  District,  as  provided  for  in  the  Sioux  Falls 
Constitutional  Convention  (1885)  and  one  at  large. 

(Mr.  Jolley  here  proceeded  to  read  the  report  of  the  Committee 
with  reference  to  rules  for  the  government  of  the  proceedings  of 
the  Convention.) 

This  Rule  1 1  is  the  rule  in  which  there  is  a  disagreement  of  the 
Committee.  (Reading  Rule  11.) 

Mr.  Wood,  of  Pennington:  Mr  President;  I  think  the  Chair- 
man of  the  Committee  is  under  a  misapprehension.  There  was  a 
suggestion  made  by  a  member  of  the  Committee  to  amend  so  far 
as  related  to  our  report  on  Rule  1 1 ,  but  on  the  matter  being  pre- 
sented individually  to  the  members,  the  minority  concurred  with 
the  majority.  I  think  the  Chairman  misunderstood  what  was 
said.  \\Y  all  concurred  in  the  report. 


34  SOUTH  DAKOTA  DEBATES,   1889. 

Mr.  Jolley,  of  Clay:     I  certainly  misunderstood. 

The  President  of  the  Convention:  I  understood' the  Chairman 
of  the  Committee  on  Rules  to  move  the  adoption  of  the  report. 

Mr  Jolley,  of  Clay:  I  so  intended.  I  move  that  the  report 
of  the.  Committee  on  Rules  be  adopted. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  report  of  the  Committee  on  Rules  be  adopted.  Are  you  ready 
for  the  question? 

(The  motion  was  seconded.) 

(Cries  of  question,  question!) 

Mr  Wescott,  of  Deuel:  Does  this  adopt  the  report  without 
further  discussion? 

The  President  of  the  Convention:.-  I  simply  asked  if  the  Con- 
vention was  ready  for  the  question. 

Mr.  Wescott,  of  Deuel:  I  desire  to  move  to  amend,  by  reading 
these  rules  section  by  section,  after  which,  if  there  is  no  objection 
made,  they  will  be  considered  as  adopted,  and  so  on  to  the  end. 
And  if  no  objection  is  made  at  once,  that  the  rules  be  adopted. 

Mr.  Jolley,  of  Clay:  The  rules  as  reported  were  the  rules  that 
governed  the  Constitutional  Convention  of  1885.  These  rules  as 
reported  here  were  substantially  the  same. 

Mr.  Wescott,  of  Deuel:  Mr.  Chairman;  I  don't  doubt  that, 
but  I  don't  think  we  can  with  only  one  reading  intelligently  com- 
prehend them.  If  my  motion  is  seconded,  I  hope  the  House  will 
sustain  me. 

A  Delegate:     Well,  I'll  second  your  motion. 

Mr.  Huntley,  of  Jerauld:  There  is  one  little  thing  in  the 
rules,  Mr.  President,  it  seems  that  two  members  may  demand  a 
roll  call,  and  we  may  be  kept  here  a  very  long  time.  It  ought  at 
least  require  five.  I  move  in  that  particular  an  amendment  that 
it  be  changed  from  two  to  five. 

The  President  of  the  Convention:  It  is  moved  by  the  Chair- 
man of  the  Committee  on  Rules  that  the  report  be  adopted.  It 
is  moved  by  the  delegate  from  Deuel  that  the  rules  be  read  section 
by  section  and  that  each  rule  be  acted  upon  separately.  Is  the 
Convention  ready  for  the  question  on  the  amendment  of  Mr. 
Wescott,  of  Deuel? 

A  Delegate:     I  did  not  understand  the  motion  was  seconded. 

The  President  of  the  Convention:  It  was  seconded.  The 
question  is  now  upon  the  amendment  by  the  gentleman  from  Deuel 


CONSIDERATION'  OF  RULES  35 

County  that  the  report  shall  be  read  rule  by  rule  and  adopted  by 
the  Convention.  Is  the  Convention  ready  for  the  question?  As 
many  as  are  of  the  opinion  that  the  amendment  be  adopted  say 
aye;  those  of  the  contrary  opinion  say  no.  The  noes  appear  to 
have  it.  The  noes  have  it. 

Mr.  Huntley,  of  Jerauld:  Mr.  President,  I  move  that  the  rule 
be  amended  so  as  to  require  five  members  to  call  for  a  roll  instead 
of  two. 

(The   amendment   was   seconded.) 

Mr.  Clough,  of  Codington:  Mr.  President,  we  studied  that 
matter  somewhat,  and  we  believe  that  the. ends  of  justice  might 
sometimes  be  reached  better  upon  the  call  of  two  members,  rather 
than  five. 

Mr.  Jolley,  of  Clay:  Mr.  President;  if  I  was  afraid  to  make 
any  record  here  so  that  the  boys  who  sent  me  would  not  know  it,  I 
would  make  it  ten  instead  of  two. 

Mr.  Neill,  of  Grant:  The  moving  of  any  motion  to  get  it 
before  this  House  requires  two  members.  There  is  then  no  dif- 
ference between  an  ordinary  motion  and  the  calling  of  the  yeas 
and  nays  on  any  question,  under  these  rules.  We  might  find  our- 
selves annoyed  very  much  by  some  captious  member  or  two.  I 
think  five  is  certainly  a  very  low  limit,  and  I  hope  this  amendment 
will  prevail. 

The  President  of  the  Convention:  The  question  before  the 
Convention  is  on  the  amendment  of  the  gentleman  from  Jerauld. 
The  recommendation  of  the  Committee  is  that  two  delegates 
may  call  for  the  roll.  The  amendment  is  to  strike  out  "two" 
and  insert  "five".  Are  you  ready  for  the  question?  Those  of 
the  opinion  that  the  amendment  prevail  will  say  aye;  those  op- 
posed say  no.  The  Chair  is  unable  to  determine.  Those  in  favor 
of  the  amendment  will  rise  and  stand  to  be  counted.  You  may 
now  be  seated.  Those  of  the  contrary  opinion  will  rise  and  stand 
to  be  counted.  Be  seated. 

The  Secretary  announced  that  there  were  in  favor  of  the 
amendment,  30  ayes,  and  against  the  amendment  42  noes. 

The  President  of  the  Convention:  So  the  amendment  is  lost. 
Are  there  any  further  amendments?  The  question  now  recurs 
on  the  original  motion  that  the  report  of  the  Committee  be  adopted. 
Is  the  Convention  ready  for  the  question?  Those  of  the  opinion 
that  the  motion  prevail  will  say  aye;  those  opposed  say  no.  The 


36  SOUTH  DAKOTA  DEBATES  1889 

ayes  have  it,  and  the  report  of  the  Committee  on  Rules  is  adopted. 

What  is  the  further  pleasure  of  the  Convention? 

Mr.  Spooner,  of  Kingsbury:  Mr.  Chairman,  I  notice  that 
there  are  in  the  city,  and  perhaps  in  this  audience,  some  who  have 
been  members  of  both  of  the  prior  Conventions,  namely,  Hon.  H. 
J.  Campbell,  and  Hon.  G.  C.  Moody,  and  I  move  you  that  they 
be  accorded  the  courtesies  of  the  floor. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  is  moved  that  all  mem- 
bers of  the  two  Constitutional  Conventions,  of  1883  and  1885,  be 
accorded  the  privileges  of  the  floor.  Those  of  the  opinion  that  the 
motion  prevail  will  say  aye ;  those  of  the  contrary  opinion  will  say 
no.  The  ayes  have  it  and  the  motion  prevails. 

Mr.  Neill,  of  Grant:  Mr.  Chairman,  I  move  you,  Sir,  that 
Ivan  W.  Goodner,  of  Huron,  and  Theron  G.  Brown,  of  Sioux  Falls, 
be  employed  as  stenographers  of  this  Convention,  according  to 
the  provisions  made  in  the  report  of  the  Committee  on  Rules. 

Mr.  Hole,  of  Beadle:     I  second  the  motion. 

The  President  of  the  Convention:  It  is  moved  that  Ivan  W. 
Goodner,  of  Huron,  and  Theron  G.  Brown,  of  Sioux  Falls,  be 
employed  as  stenographers  of  this  Convention.  Is  the  Convention 
ready  for  the  question?  Those  of  the  opinion  that  the  motion 
prevail  will  say  aye;  those  of  the  contrary  opinion  will  say  no. 
The  ayes  have  it  and  Mr.  Goodner  and  Mr.  Brown  are  elected  the 
Stenographers  of  this  Convention. 

Mr.  Cal dwell,  of  Minnehaha:  Mr.  President;  it  is  desired  by 
the  parties  having  charge  of  the  printing  of  the  Convention  that 
the  Convention  will  indicate  the  probable  number  of  finished  copies 
of  the  Journal  they  will  have  printed.  It  is  necessary  that  the 
type  set  for  the  Daily  Journal  shall  be  so  arranged  as  to  make  a 
complete  book,  when  it  shall  be  printed  day  by  day,  and  this 
Journal — the  completed  Journal,  as  I  understand  it,  is  furnished 
from  the  appropriation  which  has  been  made  for  the  expenses  of 
the  Convention,  and  it  is  desirable  that  there  shall  be  at  once  an 
indication  as  to  how  many  copies  will  be  needed. 

The  President  of  the  Convention:  If  the  gentleman  makes 
no  motion,  there  is  nothing  before  the  Convention. 

Mr.  Caldwell,  of  Minnehaha:  I  desire  that  someone  who  has 
better  ideas  in  regard  to  this  than  I  have  should  make  this  motion. 
I  merely  ask  on  behalf  of  the  Secretary  of  the  Territory  and  on 


NUMBER   OF  JOURNALS  37 

behalf  of  the  printers  of  the  Journal  that  there  shall    be  an  indi- 
cation as  to  this  matter. 

Mr.  Neill,  of  Grant:  Mr.  President,  I  move  you,  Sir,  that 
there  be  500  bound  copies  printed  of  the  Journal. 

Mr.  Caldwell,  of  Minnehaha:  I  doubt,  if  it  be  the  object  of 
the  gentleman  to  furnish  them  for  the  use  of  the  Convention — 

Mr.  Neill,  of  Grant:     Yes,  Sir. 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question?  I  would  suggest  that  this  had  better  go  to  a 
committee,  from  the  fact  that  we  only  have  a  limited  amount  of 
money.  As  I  understand  we  are  restricted  in  the  amount  which 
shall  be  used  for  the  printing. 

Mr.  Caldwell,  of  Minnehaha:  Yes,  Mr.  President,  that  is  so. 
There  is  only  $3750  for  the  two  Conventions,  as  I  remember  the 
amount. 

Mr.  Davies,  of  Edmunds:  Mr  President,  I  move  as  an 
amendment  that  this  be  referred  to  the  Committee  on  Printing. 

The  amendment  received  a  second. 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question? 

•Mr.  Caldwell,  of  Minnehaha:  Mr.  President,  it  is  very  neces- 
sary that  this  matter  be  determined  at  a  very  early  time,  because 
the  accumulation  of  type  for  the  Daily  Journal  saps  the  facilities 
of  the  printing  institution  so  that  it  is  necessary  that  it  be  determined 
very  soon. 

Mr.  Wescott,  of  Deuel:  Mr.  Chairman,  I  move  as  an  amend- 
ment that  it  be  fixed  at  300  instead  of  500. 

The  President  of  the  Convention:  The  question  is  upon  the 
motion  to  refer  to  the  Committee  on  Printing.  The  motion  pre- 
vailed and  the  subject  was  referred  to  the  Committee  on  Printing. 

Mr.  Jolley,  of  Clay:  Mr.  President,  I  move  you,  Sir,  that 
300  copies  of  the  rules  that  have  just  been  adopted  be  printed  for 
the  use  of  the  members  of  the  Convention. 

Mr.  Kellam,  of  Brule:     I  move  as  an  amendment  to  ma! 
150. 

Mr.  Jolley,  of  Clay:  Mr.  President,  all  I  have  to  say  is  this: 
The  reason  why  the  Committee  lias  been  twenty-four  hours  in 
report  ing  is  from  tin-  faet  that  \ve  have  hunted  from  one  end  of 
the  Territory  to  the  other  so  as  to  find  the  printed  rules  and  not 
make  it  necessary  for  us  to  write  them  out. 


38  SOUTH  DAKOTA  DEBATES  1889 

A  Delegate:  Mr.  Chairman,  I  wou'd  favor  the  amendment 
that  150  be  the  number.  It  sounds  better  anyhow. 

The  President  of  the  Convention:  The  question  is  upon  the 
amendment  by  the  gentleman  from  Brule  that  the  number  be  fixed 
at  150.  Is  the  Convention  ready  for  the  question? 

Mr.-  Caldwell,  of  Minnehaha:  Mr.  President;  of  course  the 
report  of  this  Committee  will  go  in  the  Journal  and  there  are  suf- 
ficient numbers  of  the  Journal  to  furnish  to  members  the  text  of 
this  report ;  and  it  seems  to  me  it  would  be  a  wise  thing  to  either 
dismiss  the  text  of  this  report  from  the  Journal  or  else  vote  down 
a  proposition  to  print  the  report  separately. 

The  President  of  the  Convention:  The  question  is  on  the 
amendment  of  the  gentleman  from  Brule  that  the  number  be  fixed 
at  150.  Those  of  the  opinion  that  this  motion  prevail  will  say 
aye;  those  of  the  contrary  opinion  say  no.  The  ayes  appear  to 
have  it.  The  ayes  have  it. 

(Crie.s  of  "Division,  division".) 

The  President  of  the  Convention:  It  is  moved  that  300  copies 
of  the  Rules  be  printed  for  the  Use  of  the  Convention  alone;  and 
to  that  motion  Mr.  Kellam,  of  Brule,  proposes  an  amendment  that 
only  150  copies  be  printed  for  the  use  of  the  Convention,  and  it 
is  upon  the  adoption  of  that  amendment  that  the  Convention  is 
called  upon  now  to  act.  Now,  as  many  as  are  in  favor  of  the 
amendment  that  only  150  copies  be  printed,  rise  and  stand  to  be 
counted ;  those  of  the  contrary  opinion  rise  and  stand  to  be  counted. 
There  are  49  ayes  and  22  noes,  so  that  the  amendment  is  adopted. 
The  question  now  recurs  upon  the  original  motion  as  amended, 
that  is,  that  150  copies  of  the  Rules  be  printed  for  the  use  of  the 
Convention. 

Mr.  Harris,  of  Yankton:  Mr.  President,  I  move  an  amend- 
ment by  inserting  after  the  word  "Rules  of  the  Convention",  the 
words,  "and  list  of  the  standing  committees." 

A  Delegate:     I  second  the  amendment. 

The  President  of  the  Convention:  The  question  is  upon  the 
motion  that  150  copies  of  the  Rules  be  printed.  Mr.  Harris,  of 
Yankton,  moves  an  amendment  that — 

A  Delegate:  Mr.  President,  I  move  as  a  substitute  that  there 
be  printed  of  the  regular  Journal  instead  of  these  150  extra  copies 
of  the  rules,  300  copies  of  that  Journal  giving  the  rules  and  the  names 
of  the  committees. 


RULES  39 

The  President  of  the  Convention:  It  is  suggested  to  me  that 
under  one  of  the  rules  this  is  not  in  order,  but  I  will  not  raise  it 
if  it  is  not  raised  by  anyone. 

Mr.  Kellam,  of  Brule:  Mr.  President,  I  do  not  care  about 
this,  but  the  names  of  the  members  of  the  committees  will  not 
appear  on  the  Journal  that  contains  the  report.  I  understood 
the  motion  of  Mr.  Harris  to  be  that  this  same  copy  of  the  Rules 
should  contain  the  names  of  the  standing  committees.  That  is 
the  only  information  we  care  about.  We  don't  care  what  standing 
committees  there  are,  but  we  want  to  know  what  members  are  on 
the  several  committees,  so  that  this  motion  will  not  meet  the  end. 
The  standing  committees  are  not  yet  announced,  and  the  Journal 
of  today  will  give  us  no  information  upon  that  subject. 

The  President  of  the  Convention:  It  is  moved  that  150  copies 
of  the  Rules  be  printed  for  the  use  of  the  Convention.  Mr.  Harris 
moves  an  amendment  that  the  members  of  the  committees,  as  I 
understood — that  is,  the  list  of  the  standing  committees,  should 
be  printed  at  the  same  time.  It  is  moved  as  a  substitute  that 
this  all  be  printed  in  the  Journal  of  today.  In  other  words,  if  I 
understand  the  question,  it  is  that  no  extra  copies  of  the  rules  be 
printed,  and  no  extra  copies  of  the  list  of  standing  committees 
be  printed  except  that  contained  in  the  Journal  of  today,  and  that 
300  copies  of  the  Journal  of  today  be  printed. 

Mr.  Peck,  of  Hamlin:  Mr.  President,  I  fail  to  understand 
how  we  are  going  to  get  a  list  of  the  names  of  the  members  of  the 
committees  today,  inasmuch  as  they  will  not  be  named  by  yourself. 
I  fancy  we  can  get  enough  if  we  can  get  300  copies  of  the  Journal 
of  today  and  of  the  Journal  upon  the  day  after  the  names  are  an- 
nounced. 

Mr.  Caldwell,  of  Minnehaha:  The  amount  for  the  printing 
is  S3, 750  for  the  two  Conventions  as  I  am  'informed  by  Secretary 
Richardson,  and  it  will  probably  be  necessary  to  economize  some- 
what in  the  matter  of  printing,  and  the  motion  which  has  been 
offered  as  a  substitute  is  a  step  in  that  direction,  and  1  therefore 
hope  that  it  will  be  adopted. 

The  President  of  the  Convention:  I  will  state  the  question 
again;  it  is  in  effect  that  no  rules  and  no  list  of  the  standing  com- 
mittees be  printed  except  as  they  occur  in  the  Journal  of  toe  lav, 
and  that  300  copies  be  printed. 

Is   the    Convention    rea-ly    for   the    question?     Those   of    the 


40  SOUTH  DAKOTA  DEBATES  1889 

opinion  that  the  motion  prevail  will  say  aye ;  those  of  the  contrary 
opinion  say  no.  The  ayes  appear  to  have  it.  The  ayes  have  it. 

I  was  in  hopes  that  some  member  would  suggest  to  the  Con- 
vention, that  it  would  be  perfectly  impossible  to  carry  out  that 
order.  I  cannot  announce  those  committees  today. 

Mr.  Dickinson,  of  Day:  It  was  not  my  idea  that  the  names 
of  the  committees  be  published  but  simply  the  list  of  the  committees ; 
but  whenever  the  committees  are  named  they  will  also  appear, 
and  we  can  have  300  copies  of  the  Journal  of  that  day  with  the 
names  of  the  members. 

Mr.  Humphrey,  of  Faulk:  I  move  that  the  President  of  this 
Convention  be  instructed  to  inform  the  Constitutional  Convention 
of  North  Dakota  by  telegraph  that  the  Constitutional  Convention 
of  South  Dakota  has  provided  for  a  joint  commission  of  seven 
to  agree  upon  an  equitable  division  of  all  property  belonging  to 
the  Territory  of  Dakota,  the  disposition  of  all  public  records, 
and  to  adjust  and  agree  upon  the  amount  of  debts  and  liabilities 
of  the  Territory,  and  request  that  a  like  commission  be  appointed 
by  the  Constitutional  Convention  of  North  Dakota. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  is  moved  that  the  Presi- 
dent of  the  Convention,  by  telegram,  inform  the  Constitutional 
Convention  at  Bismarck  of  the  action  of  this  Convention  with  ref- 
erence to  the  joint  commission. 

Mr.  Neill,  of  Grant:  Mr.  President,  I  believe  we  gave  our 
committee  authority  to  act  on  that  subject.  If  that  is  not  the 
understanding  that  the  committee  has  we  simply  wish  to  know  it. 
I  do  not  wish  to  take  any  action  here  that  would  be  discourteous 
to  that  Committee. 

Mr.  Humphrey,  of  Faulk:  Mr.  President;  the  motion  finally 
referred  to  the  Committee  on  Rules  was  to  the  effect  that  a  special 
committee  be  appointed  to  communicate  with  North  Dakota  and 
ask  them  how  many  they  wanted  on  the  commission  and  when 
they  should  meet.  The  Committee  thought  it  would  be  hardly 
proper — we  thought  it  would  be  more  compatible  with  the  dignity 
of  South  Dakota  that  the  President  of  this  Convention  should 
notify  them,  instead  of  the  Committee  on  Rules. 

Mr.  Wood,  of  Pennington:  Mr.  President ;  in  that  we  assume  or 
arrogate  to  ourselves  the  right  to  direct  North  Dakota  to  appoint 
the  same  number  that  we  have,  seven.  Now,  we  get  the  righi  to 


JOINT  COMMISSION  41 

appoint  this  commission  from  the  same  source  that  they  do.  With 
that  exception  I  think  the  motion  is  all  right.  It  would  be  better 
for  us  not  to  put  this  motion  in  this  form,  I  think.  We  ought  not 
to  suggest  to  North  Dakota  what  to  do  at  all.  The  law  is  in  op- 
eration there  as  well  as  here.  I  move  to  amend  by  striking  out 
that  portion  of  the  motion  requesting  them  to  appoint  a  like  com- 
mission consisting  of  a  like  number. 

A  Delegate:     I  second  the  motion. 

Mr.  Humphrey,  of  Faulk:  Mr.  President,  I  accept  the  amend- 
ment. 

The  President  of  the  Convention:  Do  I  understand  the 
gentleman  to  accept  the  amendment  in  full  or  only  so  far  as  the 
number  is  concerned. 

Mr.  Wood  of  Pennington:  I  think  it  was  accepted  only  so 
far  as  the  number  is  concerned. 

The  President  of  the  Convention:  It  is  moved  by  Mr.  Humph- 
rey, of  Faulk,  that  the  President  of  the  Convention  be  instructed 
to  notify  the  Constitutional  Convention  of  North  Dakota,  by  tel- 
egraph, that  the  Constitutional  Convention  of  South  Dakota 
had  provided  for  a  joint  commission  of  seven,  and  that  they  be 
requested  to  appoint  a  like  number  10  confer  with  them.  To  this 
Mr.  Wood,  of  Pennington,  moves  an  amendment  that  all  that  part 
of  the  resolution  requesting  the  Constitutional  Convention  of 
North  Dakota  to  appoint  a  like  number  be  stricken  out. 

Mr.  Humphrey,  of  Faulk:  I  accept  the  amendment  with  the 
consent  of  my  second. 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question? 

A  Delegate:     I  accept  the  amendment. 

The  President  of  the  Convention:  The  question  then  recurs 
upon  the  original  proposition  that  the  President  of  this  Convention 
notify  the  Constitutional  Convention  at  Bismarck,  by  telegram, 
that  this  Convention  lias  adopted  a  resolution  providing  for  tilt- 
appointment  of  a  joint  commission  of  seven  to  assemble  at  Bismarek. 
As  many  as  are  of  the  opinion  that  this  motion  prevail  will  say 
as  manv  as  are  of  the  eont  rary  'opinion  say  no.  The  ayes 
appear  to  have  it.  The  ayes  have  it. 

Mr.    Voting,   nf    Lake:      Mr.    President,   it    is    very    evidei: 
the  majority  of  the  members  here  that   \ve  are  lal-orin^  under  very 
serious  ineonvenienee  from  lack  of  eopies  of  the  Omnibus   Hill  and 


42  SOUTH  DAKOTA  DEBATES  1889 

of  the  Constitution.  I  will,  therefore,  move  you  that  100  copies 
of  the  Omnibus  Bill  be  requested  of  the  Secretary  of  the  Interior 
of  the  United  States,  and  that  100  accurate  copies  of  the  engrossed 
copy  of  the  Sioux  Falls  Constitution  be  furnished  for  the  use  of 
the  members  of  this  Convention. 

Mr.  Price,  of  Hyde:  Mr.  Chairman,  I  move  to  lay  that  motion 
upon  the  table.  This  Omnibus  Bill  has  been  printed  by  the 
Argus-Leader,  and  numerous  other  papers  in  the  Territory,  and 
it  would  take  until  after  this  Convention  has  adjourned  before  we 
could  get  it  anyhow. 

Mr.  Lee,  of  Spink:  Mr.  Chairman,  I  think  that  is  very  wise. 
Most  of  us  have  brought  it  with  us  anyway. 

Mr.  Young,  of  Lake:  Mr.  President;  there  seems  to  be  some 
question  about  the  legitimacy  of  the  form  of  the  motion;  but  its 
importance  is  such  that  if  it  cannot  be  disposed  of  finally  at  this 
time  I  would  ask  the  unanimous  consent  of  the  Convention  to 
withdraw  it  until  Monday,  and  then  put  it  in  such  a  form  that  it 
can  go  through. 

The  President  of  the  Convention:  The  Chair  hears  no  objec- 
tion and  consent  is  given. 

What  is  the  further  pleasure  of  the  Convention? 

A  Delegate:  Mr.  President,  I  move  that  we  now  adjourn 
until  Monday  at  two  o'clock. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  Convention  do%  now  adjourn  until  Monday  at  two  o'clock. 
Those  of  the  opinion  that  the  motion  prevail  will  say  aye;  those 
qf  the  contrary  opinion  say  no. 

The  ayes  have  it,  and  the  Convention  stands  adjourned  until 
Monday  next  at  two  o'clock  P.  M. 

ADJOURNED. 


FIFTH  DAY. 

Sioux  Falls,  Dakota,  July  8th,  1889. 

Two  o'clock  P.  M. 

The  Convention  assembled  pursuant  to  adjournment. 

Prayer  was  offered  by  the  Chaplain  as  follows: 

Oh  Thou  God  of  hosts,  we  thank  Thee  for  the  privilege  we 
enjoy  of  life,  liberty,  and  the  pursuit  of  happiness;  and  we  would 
ask  Thee  that  Thou  wilt  help  us,  that  we  so  conduct  the  affairs 
that  are  placed  in  our  hands,  that  the  world  shall  be  better  that 
we  have  lived  therein.  These  favors  we  ask,  and  Thy  continued 
favor,  in  Jesus'  name, 

AMEN. 

After  the  reading  of  the  Journal  had  proceeded  some  little 
time  Mr.  Caldwell  moved  that  further  reading  of  the  Journal  be 
dispensed  with. 

Which  motion  prevailed. 

Mr.  Kellam:  As  I  remember  the  motion  of  Mr.  Jolley,  (of 
Clay)  for  printing  three  hundred  copies  of  the  rules  was  disposed 
of;  I  understood  that. there  was  an  amendment,  or  substitute  car- 
ried? 

Mr.  Caldwell:  There  are  several  of  the  members,  (myself 
among  the  number)  who  have  not  yet  received  today's  Journal 
at  the  desk. 

Voices  from  different  parts  of  the  house:     "None  here". 

Mr.  Dickinson:  The  mover  of  that  substitute  as  given  by 
the  Journal,  is  a  name  I  do  not  recognize  as  a  member  of  this 
Convention.  It  should  read  Dickinson, — not  Harris. 

The  President:     The  Clerk  will  note  the  correction. 

Mr.  Caldwell:  I  believe  it  is  the  ordinary  practice,  and  would 
certainly  be  well  in  this  instance  at  least,  in  order  to  prevent  in- 
cumbering  the  Joiirnal,  with  motions  which  may  be  made  and  not 
carried,  that  such  motions  shall  not  be  entered  upon  the  minutes; 


44  SOUTH  DAKOTA  DEBATES  1889 

unless  the  motion  made  has  reference  to  a  subsequent  action. 
Where  a  motion  is  merely  made  and  not  carried,  I  suggest  that 
they  be  omitted  from  the  records. 

The  President:  You  now  move  that  hereafter  the  Clerk  be 
required  to  omit  from  the  Journal,  the  motions  that  are  made  and 
lost,  that  they  do  not  really  become  the  proceedings  of  the  body; 
would  not  it  be  well  to  refer  that  to  the  Committee  on  Rules. 

Mr.  Caldwell:  I  was  suggesting  merely,  parlimentary  practice 
of  deliberative  bodies,  without  any  rules. 

The  President:  The  next  order  of  business  is  communications 
and  presentations  of  petitions. 

Mr.  Caldwell:  If  it  will  be  in  order  to  make  a  verbal  com- 
munication under  this  order  of  business  I  would,  on  behalf  of  the 
Commissioner  of  Immigration  of  the  Territory,  state. that  he  has 
forwarded  to  me  several  copies  of  a  map  of  North  Dakota,  and 
also  maps  of  South  Dakota  for  distribution  to  the  members;  and 
likewise  copies  of  these  hangers  (Indicating.)  These  are  from 
his  office  and  there  is  one  for  each  member  of  the  body;  and  also 
the  Secretary  has  forwarded  to  me  a  copy  for  each  member  of 
Long's  Legislative  Handbook,  containing  a  copy  of  the  Sioux 
Falls  Constitution  and  a  large  amount  of  statistics  which  will  be 
desirable  for  this  body  to  have,  and  that  he  requested  me  to  have 
them  distributed. 

Mr.  President:  Under  the  order  of  unfinished  business  of 
the  preceding  day,  I  will  state  to  the  Convention  that  I  have  not 
been  able  to  complete, — fully  complete  the  list  of  the  committees ; 
I  will  have  it  tomorrow  at  the  session  of  the  Convention.  I  can 
only  announce  the  committee  that  will  goto  Bismarck.  The  com- 
mittee forming  a  part  of  the  joint  commission  to  proceed  to  Bis- 
marck under  the  Omnibus  Bill,  is  Mr.  Kellam,  of  Brule;  Mr.  McGil- 
licuddy,  of  Pennington;  Mr.  Neill,  of  Grant;  Mr.  Caldwell,  of  Min- 
nehaha;  Mr.  Elliott,  of  Turner;  Mr.  Price,  of  Hyde;  and  Mr.  Brott, 
of  Brown. 

Mr.  Coats:  My  business  was  such  that  it  was  impossible 
for  me  to  be  present  at  the  first  two  days'  meeting  of  this  Con- 
vention; I  shall  be  obliged  to  ask  to  be  excused  and  have  it  so  ap- 
pear upon  the  record. 

The  President:  If  there  is  no  objection,  it  will  be  so  ordered. 
The  Chair  hears  no  objection ;  it  is  so  ordered. 


CONSTITUTION  OF  1885  45 

The  President:  The  Chair  appoints  Charles  C.  Walts  and 
A1bert  J.  Keith,  as  Pages. 

Mr.  Jolley:  I  make  the  report  verbally  that  the  Committee 
on  Rules,  ask  that  Rule  43,  page  4,  as  published  in  these  proceed- 
ings, be  amended  by  striking  out  the  words  "two  pages"  and  in- 
serting in  lieu  thereof,  the  words  "three  pages".  The  Committee 
arrived  at  this  conclusion  for  this  reason  to  give  a  page  to  this  side 
of  the  hall  and  an  extra  Page  for  the  presiding  officer  of  this  Con- 
vention, and  the  officers.  1  move  you  that  the  words  "two  Pages", 
in  line  four,  of  Rule  Forty-three,  be  stricken  out  and  insert  in  lieu 
thereof,  the  words  "three  Pages". 

Which  motion  prevailed,  and  the  Rule  was  declared  so  amended. 

Mr.  Price:  The  members  on  this  side  of  the  hall  have  not 
been  furnished  copies  of  the  Journal. 

The  President:  Only  a  few  copies  have  been  received  from 
the  printers. 

Mr.  Price:  It  is  a  small  matter,  but  the  Journal  reads  in  line 
31,  page  9,  that  Mr.  Coats  moved  the  motion  with  relation  to  pro- 
curing 100  copies  of  the  Omnibus  Bill,  be  tabled ;  that  should  appear 
Mr.  Price,  instead  of  Mr.  Coats. 

The  Presdient      The  Clerk  will  make  the  necessary  change. 

Mr.  Caldwell:  I  would  ask  if  there  has  been  any  direction 
yet  to  the  Commission  to  go  to  Bismarck,  as  to  the  time  it  shall  go. 

The  President:  I  sent  the  communication  ordered  by  the 
Convention,  on  Saturday,  to  the  President  of  the  Constitutional 
Convention  at  Bismarck ;  it  probably  went  so  late  that  he  did  not 
receive  it  until  after  the  adjournment  of  the  Convention  on  Satur- 
day; I  have  received  no  answer  as  yet. 

Mr  Young:  As  we  are  forming  a  document  here,  the  import- 
ance of  which  is  so  great  that  it  is  absolutely  necessary  that  it  be 
correct  in  every  detail,  and  although  I  do  not  know  as  to  the  quality 
of  the  copy  in  Long's  Legislative  Manual,  I  do  know  that  these 
copies  that  have  been  distributed  by  the  Central  Committee  and 
the  copy  in  the  Argus-Leader  are  different,  greatly;  I  notice  in 
Section  Five,  of  Article  Eight,  that  there  is  a  discrepancy  in  regard 
to  three  words  in  one  section ;  now  I  do  not  think  that  such  copies 
are  right  copies  to  have  as  a  basis  of  our  work,  therefore,  I  re- 
submit  the  following  resolution: 

RESOLVED,  That  a  committee  of  five  In-  appointed  whose  duly 
it  shall  be  to  procure  from  the  President  the  original  and  authentic 


46  SOUTH  DAKOTA  DEBATES  1889 

engrossed  and  certified  copy  of  the  Constitution,  and  procure  the 
same  to  be  carefully  and  correctly  copied,  and  to  have  the  same 
carefully  and  correctly  printed  under  their  supervision  and  laid 
upon  the  desks  of  the  members,  and  the  same  committee  be  in- 
structed to  procure  and  place  upon  the  tables  of  the  members 
carefully  and  correctly  printed  copies  of  the  Enabling  Act,  under 
which  this  Convention  has  assembled;  the  same  committee  be  also 
instructed  to  procure  from  H.  M.  Avery,  the  assistant  secretary 
of  the  last  Convention,  the  engrossed  copy  of  the  Constitution  in 
his  possession,  and  that  the  same  committee  be  instrticted  to  care- 
fully compare  said  copies  with  a  view  to  the  correction  of  any 
mistakes. 

Mr.  Young:     I  move  the  adoption  of  that  resolution. 

Mr.  Dickenson:     I  second  the  motion. 

The  President:  Do  you  mean  the  engrossed  copy  or  the  en- 
rolled copy?  Under  the  authority  of  the  last  Convention  it  was 
committed  to  my  custody  and  has  remained  there  until  today. 

Mr.  Young:  I  was  instructed  there  were  two  copies;  one  in 
your  possession  and  one  in  the  possession  of  Mr.  H.  M.  Avery. 

The  President:  I  cannot  tell  what  Mr.  Avery  has;  I  have 
the  original  copy;  the  only  copy  that  can  be  authority  anywhere; 
that  was  committed  to  me  by  the  Convention,  and  ordered  by  the 
Convention  to  be  kept  by  me,  until  it  was  deposited  with  the  Sec- 
retary of  State  of  the  state  to  be.  My  intention  was  to  present 
that  at  some  proper  time  to  this  Convention,  as  I  believe  now  it 
belongs  to  and  should  be  the  property  of  this  Convention.  As  I 
said  before,  the  original  enrolled  bill,  I  have  just  as  signed  by  the 
members  of  that  Constitutional  Convention.  I  only  make  this 
suggestion  for  the  information  of  the  members  of  the  Convention. 

Mr.  Peck:  Not  having  been  furnished  the  Journal  of  Satur- 
day, in  which  the  several  committees  were  named,  I  have  no  way 
of  knowing  whether  a  committee  was  appointed  on  Constitution; 
I  presume  in  that  connection  that  the  Committee  is  to  correct  that 
Constitution;  we  have  parted  with  our  rights  as  a  Convention  to 
correct  that  Constitution  except  through  that  Committee;  and 
we  require  of  the  Committee  to  get  such  information  as  will  enable 
them  to  give  us  a  correct  copy  of  the  report. 

Mr.  Caldwell:  It  occurs  to  me  that  the  necessities  of  the  case 
are  scarcely  sufficient  to  warrant  the  printing  of  another  Consti- 
tution. It  seems  to  me  that  if  the  Chairman  should  have  the 
official  copy  of  the  Constitution  it  would  be  possible  to  thereby 
indicate  to  this  Convention  the  changes  which  the  Committee 


CERTIFIED  COPY  1885  47 

might  deem  to  be  necessary,  by  comparison  with  this  copy  of 
Long's  Legislative  Handbook, — that  the  Convention  would  then 
have  in  its  possession,  that  which  would  enable  it  to  understand 
what  it  has  got  to  do  in  the  work  before  it.  The  time  required  to 
print  a  sufficient  number  of  copies  from  this  enrolled  copy  of  the 
Constitution  would  be  greater  than  the  benefits  to  be  derived  from 
it  would  amount  to.  I  would  therefore  oppose  the  motion  as  it 
is  made. 

Mr.  Sterling:  I  simply  wish  to  say  that  I  agree  with  the 
speaker  last  upon  the  floor  in  this  respect.  It  seems  to  me  that 
with  the  official  copy  here,  such  as  I  understand  the  Chairman  to 
say  he  has,  a  comparison  can  be  readily  made  with  the  copies  that 
we  have  at  our  desks ;  it  can  be  ascertained  whether  the  copies  are 
true  or  not,  while  we  have  the  original  here  and  the  time  and  ex- 
pense would  be  both  saved.  I  would  oppose  the  resolution. 

Mr.  Young:  It  seems  to  me  a  misapprehension  that  some 
are  laboring  under  is  this:  The  Committee  will  have  this  perfectly 
correct  copy  to  work  with  in  making  their  reports;  I  would  for 
that  reason  supply  them  with  copies  that  they  might  work  with 
uniformity, — so  that  the  comparison  might  be  made  by  one  com- 
mittee instead  of  every  committee. 

Mr.  Peck:  I  have  since  my  remarks  been  served  with  a  copy 
of  the  Rules;  I  find  committee  twenty-three  are  appointed  for 
revision  and  correction  of  the  Constitution;  I  understand  that 
they  have  that  in  hand,  and  one  copy  will  be  quite  sufficient  for 
seven  men  to  make  the  correction  from,  I  fancy. 

The  resolution  reaching  a  vote  of  the  Convention,  was  lost. 

Mr.  Dickenson:  Referring  to  the  top  of  the  ninth  page  of  the 
Journal,  Mr.  Neill  of  Grant,  moved  that  five  hundred  "bound" 
copies  of  the  Journal  be  printed  instead  of  five  hundred  "extra" 
copies.  That  motion  was  referred  to  the  Committee  on  Printing. 

The  President:  Mr.  Dickenson  asks  that  the  Journal  be  cor- 
rected by  striking  out  the  word  "extra"  and  inserting  the  word 
"bound". 

Mr.  Caldwell:  With  regard  to  this  matter  I  would  like  to 
urge  the  necessity  of  prompt  action  on  the  part  of  the  Committee 
on  Printing  in  determining  the  number  of  bound  volumes  the  Con- 
vention will  desire ;  there  are  certain  mechanical  questions  involved 
as  to  the  facilities  for  doing  the  printing,  and  if  it  is  possible  for 


48  SOUTH  DAKOTA  DEBATES  1889 

this  Committee  to  determine  pretty  near  about  it,  it  will  greatly 
facilitate  the  matter  of  providing  the  Journal. 

The  President:  It  will  be  pretty  difficult  for  the  Committee 
to  act  until  they  are  appointed. 

Mr.  Caldwell:     It  WILL  be  pretty  difficult!     (Laughter.) 

Mr.  Neill:  I  think  when  it  comes  to  be  left  to  the  Committee 
on  Printing,  to  determine  the  number  of  copies,  that  they  will  be 
as  much  at  'sea  as  the  Convention  now  is,  in  recommending  the 
number.  This  Convention  might  just  as  well  settle  the  number 
of  copies  at  once,  as  to  do  it  at  a  later  date,  and  therefore  to  bring 
this  matter  before  the  Convention  and  have  it  decided,  I  move 
you  that  five  hundred  bound  copies  of  the  Journal  be  printed; 
that  is  of  the  complete  Journal. 

Mr.  Jolley:  Can  you  entertain  that  motion  while  this  matter 
has  already  been  sent  to  a  Committee? 

The  President:     Not  if  any  objection  is  made. 

The  President:     The  Chair  hears  no  objection. 

Mr.  Spopner:  I  rise  to  a  point  of  order;  it  is  not  the  proper 
motion  to  submit ;  there  was  a  previous  motion  referring  the  matter 
to  the  Committee  on  Printing. 

The  President:  The  gentleman  from  Kingsbury  raises  the 
point  of  order  that  on  Saturday  some  motion  was  before  the  Con- 
vention and  the  Convention  referred  the  matter  to  the  Committee 
on  Printing;  the  Chair  is  of  the  opinion  that  the  point  of  order  is 
well  taken. 

Mr.  Caldwell:  If  it  is  not  to  be  regarded  as  discourteous  to 
a  committee  not  yet  in  existence  (laughter)  I  would  move  that 
the  matter  of  bound  copies,  be  withdrawn  from  the  Committee  on 
Printing  and  again  brought  before  the  House,  for  consideration. 

Mr.  Peck:  I  will  gladly  second  that  if  in  order;  can  probably 
facilitate  the  work  of  the  Committee,  if  we  can  give  them  such 
consideration. 

Mr.  Caldwell:  It  is  suggested  that  it  would  make  the  Journal 
in  better  form  if  the  motion  referring  this  to  the  Committee  on 
Printing,  be  reconsidered;  I  would  by  consent  of  the  House,  with- 
draw the  previous  motion,  substituting  therefor,  the  motion  to 
reconsider  the  vote  by  which  the  subject  of  bound  copies  of  the 
Journal  was  referred  to  the  Committee  on  Printing. 

Which  motion  prevailed. 

Mr.  Neill:     The  motion  I  believe  before  the  House,  is  the  one 


ROUTINE  49 


made  Saturday,  that  five  hundred  bound  copies  of  the  Journal  be 
printed  for  the  use  of  the  Convention;  am  I  right? 
The  President:     Yes,  Sir. 

Mr.  Neill:  Mr.  President;  my  reason  for  making  that  the 
number  of  bound  copies  is  this:  We  will  get  five  hundred  about 
as  cheaply  as  we  will  get  three  hundred,  because  the  greater  part 
of  the  expense  in  getting  up  a  book  of  that  kind  comes  in  the  first 
three  hundred  or  five  hundred.  Yet  we  do  not  wish  to  act  with 
extravagance  that  would  require  us  to  modify  that  order.  I 
think  we  should  order  the  largest  limit  compatible  with  the  needs, 
and  with  the  expenses  that  this  Convention  could  well  afford  to 
pay.  I,  for  these  reasons,  move  that  we  have  five  hundred  copies 
of  the  bound  volume  of  the  Journal.  I  do  not  think  that  three 
hundred  copies  would  be  as  satisfactory  as  five  hundred ;  it  would 
only  make  something  like  five  or  six  to  each  of  us. 

Mr.  Peck:  I  would  second  that  if  the  mover  would  designate 
his  manner  or  recommendation  of  dividing  those;  how  they  will 
be  distributed. 

The  motion  of  Mr.  Neill,  (of  Grant)  prevailed. 
Mr.  Peck:     I  would  make  a  resolution  supporting  the  same 
thing;  that  six  copies  be  given  to  each  member  of  this  Convention, 
and  the  balance  remain  in  the  Parlimentary  Library  for  further  use. 
Mr.  Caldwell  seconded  the  motion. 

Mr.  Caldwell:  I  would  suggest  the  correction  of  the  motion 
as  I  intended  it;  I  didn't  intend  "Parlimentary  Library". 

Mr.  Peck:  That  simply  shows  where  I  came  from,  that  is 
all.  (Laughter.) 

By  rising  vote  the  motion  prevailed. 

Mr.  Goddard:  It  seems  to  be  necessary  for  me  to  be  absent 
tomorrow;  I  ask  to  be  excused. 

Th'e  President:  If  there  is  no  objection,  the  member  will 
be  excused  tomorrow;  the  Chair  hears  no  objection. 

The  President:  I  think  I  shall  be  able  to  announce  the  com- 
mittees tomorrow  at  two  o'clock;  I  had  hoped  to  do  it  today.  It 
has  been  more  difficult  than  I  at  first  supposed  possible  to  enter- 
tain all  the  conflicting  interests  and  claims  of  members  and  local- 
ities; therefore,  I  have  to  claim  the  indulgence  of  the  Convention 
for  another  day. 


SO  SOUTH  DAKOTA  DEBATES,  1889. 

Mr.  Price:  I  move  we  do  now  adjourn  until  tomorrow  at 
two  o'clock. 

Which  motion  prevailed. 

The  President:  I  announce  the  name  of  Frank  E.  Clough,  as 
the  third  Page  of  this  Convention. 


SIXTH  DAY. 

Sioux  Falls,  Dakota,  Tuesday,  July  9th,  1889. 

Two  o'clock  P.  M. 

Convention  called  to  order  by  the  President,  in  the  chair. 

Prayer  by  the  Chaplain  as  follows: 

O  God,  our  Heavenly  Father,  we  ask  Thee  that  Thou  wilt  be 
with  us  individually ;  that  our  every  act  may  be  such  as  to  meet 
the  approval  of  all  the  others  in  this  Convention,  and  may  we  as  a 
whole  so  administer  the  affairs  placed  in  our  hands  as  to  meet  with 
Divine  approval;  and  may  we  in  voicing  the  sentiments  of  the 
people  that  have  sent  us,  also  voice  the  will  of  God.  In  Jesus' 
name  we  ask  it, 

AMEN. 

Reading  of  the  Journal  of  yesterday. 

The  President  of  the  Convention:  Are  there  any  corrections 
of  the  Journal? 

Mr.  Clough,  of  Codington:  Mr.  President;  ought  it  not  to  be 
the  fifth  instead  of  the  fourth  day?  I  ask  the  question  for  in- 
formation. 

The  President  of  the  Convention:  I  don't  know  myself  what 
the  rule  is  in  making  up  a  Journal.  I  never  made  up  a  Journal, 
but  the  rule  for  conventions  and  legislatures  is  that  they  count 
from  the  first  day  to  the  last,  including  Sundays. 

Mr.  Caldwell:  Mr.  President,  I  would  say  that  it  is  the  prac 
tice,  so  far  as  the  Territory  is  concerned,  to  skip  Sunday  and  to 
make  the  Journal  show  the  number  of  days  of  the  session  so  that 
yesterday  would  have  been  the  fifth  day. 

Mr.  Clough,  of  Codington:  I  move,  Mr.  President,  that  it 
be  changed  to  the  5th  day  instead  of  the  4th. 

The  President  of  the  Convention:  If  there  is  no  objection, 
it  will  be  so  ordered,  and  the  Clerk  is  ordered  to  make  the  correction. 

Mr.  Neill,  of  Grant:  In  the  minutes  of  yesterday  there  is 
a  mistake  in  the  name  of  Neill — 


52  SOUTH  DAKOTA  DEBATES  1889 

A  Delegate:  On  the  second1  page,  third  line,  in  agreement 
with  the  suggestion  of  the  gentleman  from  Clay,  made  a  few  days 
ago,  in  favor  of  not  cumbering  our  records  and  of  having  them 
accurate  I  think  they  ought  to  change  the  words  "two  Pages" 
to  the  word  "two"  and  the  words  "three  Pages  '  to  "three",  in 
the  interests  of  accuracy. 

Mr.  Jolley,  of  Clay:  If  the  gentleman  will  read  on  further 
be  will  find  the  words  "two  dollars"  also,  and  he  will  discover  that 
it  is  necessary  that  this  be  left  as  it  is,  in  order  to  prevent  mis- 
understanding. 

The  President  of  the  Convention:  I  would  say  that  I  think 
the  Clerk  has  recorded  the  motion  as  the  Chairman  of  the  Committee 
on  Rules  made  it.  If  it  is  a  mistake,  it  is  a  mistake  of  the  Conven- 
tion in  passing  the  resolution  of  the  Chairman  of  the  Committee 
on  Rules. 

Mr.  Jolley,  of  Clay:  There  is  no  mistake  made,  either  by  the 
Chairman  of  the  Committee  or  by  the  Convention,  your  honor — 
Mr.  President,  I  mean — I  thought  I  was  trying  a  case  before  your 
honor!  (Laughter.)  If  the  word  changed  was  simply  the  word 
"two"  we  wouldn't  know  whether  it  was  the  words  "two  dollars" 
or  "two  Pages".  The  Committee  instructed  me  to  insert  the  words 
"two  Pages". 

The  President  of  the  Convention:  I  suggested  that  if  there 
was  any  mistake  it  was  the  mistake  of  the  Committee  and  of  the 
Convention,  and  not  of  the  Clerk. 

Mr.  Cal dwell,  of  Minnehaha:  Mr.  President,  as  this  Journal 
is  making  history,  and  as  those  connected  with  it  would  like  to  be 
right,  I  would  say  that  it  is  H.  M.  Avery  instead  of  H.  A.  Avery. 

I  believe  also  that  it  is  the  custom  of  the  Clerk  to  sign  each 
day's  proceedings  and  have  it  appear  upon  the  Journal. 

The  President  of  the  Convention:  If  that  is  the  rule  then  it 
is  my  mistake.  It  is  one  continuous  session;  I  never  saw  it  so  in 
my  life.  The  Convention  will  probably  adopt  the  recommendation 
of  the  Committee  on  Rules  in  that  respect.  I  would  suggest  here- 
after that  any  mere  clerical  error  of  that  kind  be  suggested  to  the 
Clerk,  and  he  make  the  entry,  as  he  will  at  once,  on  the  Journal. 
It  is  not  necessary  to  take  either  the  time  of  the  Convention  nor 
to  encumber  the  record;  a  clerical  mistake  of  that  kind  will  be 


THE  MENNONITES  S3 


corrected  at  once  by  the  clerk. 

Mr.  Atkinson,  of  Brookings:  Mr.  President,  I  would  inquire 
if  it  is  the  intention  to  have  the  word  "Territorial  Library"  here, 
or  "State  Library",  at  the  bottom  of  the  page.  The  point  is 
whether  we  intended  to  have  it  in  that  way  we  have  it  here.  The 
motion  was  that  they  should  be  deposited  in  the  "Parlimentary 
Library",  and  that  was  corrected  and  made  State  Library. 

Mr.  Peck,  of  Hamlin:  You  simply  did  not  adopt  my  sug- 
gestion and  got  it  worse,  that's  all!  (Laughter.) 

The  Presdient  of  the  Convention:  I  will  now  submit  the  list 
of  Committees.  Perhaps  I  should  say  to  the  Convention  that  I 
have  no  hope — no  expectation  that  the  committees  will  suit  every 
member  of  the  Convention.  It  has  been  rather  of  a  laborious 
duty  to  have  all  the  different  locations  satisfied  and  to  have  the 
different  interests  in  the  Convention  made  content ;  and  it  has 
been  impossible  to  so  make  up  the  list  that  everyone  would  be 
satisfied.  The  Clerk  will  read  the  list  of  committees. 

(The  Chief  Clerk  here  read  the  appointment  of  committees.) 

The  President  of  the  Convention:  What  is  the  further  pleas- 
ure of  the  Convention? 

Mr.  Williams,  of  Bon  Homme:  Mr.  Chairman,  if  it  is  in  order 
at  this  time,  I  have  a  petition  I  would  like  to  present.  This  peti- 
tion comes  from  a  religious  society  in  Bon  Homme  County,  setting 
forth  their  views  as  belonging  to  what  is  known  as  the  non-resistant 
sect — setting  forth  their  privations  in  Russia,  their  sacrifices  in 
property,  and  their  emigration  to  America,  and  asking  that  this 
Convention  incorporate  into  the  Constitution  an  exemption  from 
military  duty;  which  resolution  I  move  be  received  and  referred 
by  the  President  to  the  appropriate  committee. 

The  President  of  the  Convention:  It  will  be  so  ordered  unless 
objection  is  made.  Have  you  any  suggestion  as  to  the  committee? 

Mr.  Williams,  of  Bon  Homme:  Mr.  President,  I  think  it 
would  be  proper  to  refer  it  to  a  committee  on  military. 

Mr.  Kellam,  of  Brule:  Mr.  President,  if  in  order  at  this  time 
I  desire  to  present  a  resolution  and  move  its  adoption.  Perhaps 
I  can  read  it  more  readily  than  the  Clerk: 

WHEREAS,  By  resolution  of  this  Convention  authorizing  the 
same,  the  president  of  this  Convention  has  named  and  appointed 
as  the  members  of  the  joint  commission  on  the  part  of  South  Dakota 
to  agree  upon  an  equitable  division  of  the  property  belonging  to 
the  Territory  of  Dakota,  the  disposition  of  all  public  records,  and 


54  SOUTH  DAKOTA  DEBATES  1889 

adjust  and  agree  upon  the  amount  of  debts  and  liabilities  of  the 
Territory,  which  should  be  assumed  and  paid  by  each  of  the  States 
of  North  Dakota  and  South  Dakota,  the  following  named  members 
of  the  Convention,  to-wit:  A.  G.  Kellam,  V.  T,  McGillicuddy, 
Henry  Neill,  E.  W.  Caldwell,  William  Elliott,  C..  H.  Price,  S;  F. 
Brott.  Now  be  it 

RESOLVED,  That  the  aforesaid  appointment  by  the  President 
be,  and  the  same  is,  by  this  Convention  hereby  adopted  and  in  all 
things  confirmed. 

Mr.  President,  I  move  the  adoption  of  the  resolution. 

Mr.  Hole,  of  Beadle:     Mr.  President,  I  second  the  motion. 

The  President  of  the  Convention:  The  question,  is  upon  the 
adoption  of  the  resolution  just  made  by  Mr.  Kellam,  of  Brule,  is 
the  Convention  ready  for  the  question?  Those  of  the  opinion  that 
the  resolution  be  adopted  will  say  aye ;  those  of  the  contrary,  opin- 
ion say 'no.  The  ayes  have  it  and  the  resolution  is  adopted. 

Mr.  Cldugh,  of  Codington:  Mr.  Chairman,  if  it  is  in  order  I 
move  that  the  motion  requiring  the  Secretary  to  furnish  200  copies 
of  the  daily  minutes  be  reconsidered,  and  that  500  be  ordered 
printed. 

Mr.  Lee,  of  Spink:     Mr.  Chairman,  I  second  the  motion. 

The  President  of  the  Convention:  I  would  suggest  to  the 
gentleman  from  Codington  that  possibly, the  motion  to  reconsider 
be  first  made. 

Mr.  Clough,  of  Codington:  I  move  to  reconsider  the  motion. 
The  reason  is  that  newspapers  all  about  are  asking  for  copies.  . 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  and 
seconded  to  reconsider  the  motion  requiring  the  Secretary  to  fur- 
nish 200  copies  daily  of  the  Journal.  Is  the  Convention  ready 
for  the  question? 

Mr.  Price,  of  Hyde:  Mr.  President,  I  am  in  favor  of  that 
motion,  but  I  move  an  amendment  that  the  Chief  Clerk  be  instructed 
to  lay  upon  the  desk  of  each  member  a  certain  number  of  copies 
each  morning. 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question? 

Mr.  Caldwell,  of  Minnehaha:  Mr.  President,  I  rise  ,to  the 
point  of  order  that  more  than  two  days  have  elapsed  since  the 
motion  was  made,  and  it  cannot  be  reconsidered. 


ROUTINE  55 


Mr.  Jolley,  of  Clay;  Mr.  President,  the  rules  require  that  two 
business  days — yesterday  was  Monday  and  this  is  Tuesday. 

Mr.  Caldwell,,  of  Minnehaha:  Mr.  President,  I  sit  down! 
(Laughter.) 

Mr.  Wescott,  of  Deuel:  Mr.  Chairman;  is  is  not  possible  that 
having  ordered  200  on  the  previous  day,  we  can  order  200  more 
today. 

The  President  of  the  Convention:  The  question  is  upon  the 
motion  to  reconsider.  Is  the  Convention  ready  for  the  .question? 
Those  of  the  opinion  that  the  motion  prevail  will  say  aye ;  those 
of  the  contrary  opinion  will  say  no.  The  ayes  have  it  and  the 
motion  prevails. 

Mr.  Clough,  of  Codington:  Mr.  Chairman,  I  move  that  the 
Chairman  of  the  Committee  on  Printing  be  directed  to  secure  500 
copies  and  that  six  copies'  be  laid  on  the  desk  of  each  member. 

Mr.  Atkinson,  pf  Brookings:  Mr.  President,  I  move  an  amend- 
ment to  the  motion  by  making  it  the  duty  of  the  Messenger  to  do 
this  distributing.  (Great  Laughter.) 

Mr.  Wood,  of  Pennington:  Mr.  President,  it  seems-  to  me 
that  the  motion  ought  to  provide  for  their  being  delivered  before 
the  session  each  day, 

Mr.  Clough,  of  Codington:     I  accept  the  amendment. 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question?  As  many  as  are  of  the  opinion  that  the  motion 
be  so  amended  say  aye;  those  to  the  contrary  say  no.  The  ayes 
have  it. 

As  many  .as  are  of  the  opinion  that  the  motion  prevail,  as 
amended,  say  aye;  those  of  the  contrary  opinion  say  no.  The 
ayes  have  it  and  the  motion  prevails. 

Mr.  Zitka,  of  Bon  Homme:  Mr/President,  I  move  you  that 
the  Constitution  of  1885  be  ordered  read  in  this  Convention  to- 
morrow for  the  purpose  that  the  different  portions  thereof  may 
be  referred  to  the  appropriate  committees. 

A  Delegate:     Mr.  President,  I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  Constitution  of  1885  be  read  in  this  Convention  tomorrow  in 
order  that  the  different  portions  thereof  may  be  referred  to  the 
appropriate  committees.  'Is  the  Convention  ready  for  the  question? 
As  many  as  are  of  the  opinion  that  the  motion  prevail,  will  say 


56  SOUTH  DAKOTA  DEBATES  1889 

aye;  those  of  the  contrary  opinion  say  no.     The  ayes  have  it. 
The  motion  prevails. 

Mr.  Caldwell,  of  Minnehaha:  Mr.  President,  this  was  done 
in  order  that  it  might  be  referred  to  the  appropriate  committees- 
Mr.  Neill,  of  Grant:  Mr.  President,  I  ask  the  unanimous 
consent  of  the  House  to  present  the  following  resolution  and  press 
its  action  at  the  present  time,  to  avoid  the  necessity  of  sending 
it  to  the  Committee:  Resolved  that  R'lle  33  be  amended  by 
adding  thereto  the  words  "and  no  such  motions  and  resolutions 
shall  be  printed  in  the  Journal".  If  the  House  would  like,  I  will 
explain  the  reason  for  the  motion,- — and  I  move  that  the  resolution 
be  adopted. 

The  President  of  the  Convention:  Unless  otherwise  ordered 
this  will  go  to  the  Committee  on  Rules. 

Mr.  Jolley,  of  Clay:  Mr.  President,  I  would  like  to  read  Rule 
33:  "All  motions  and  resolutions  not  pertaining  to  the  current 
business  of  the  Convention,  shall  be,  upon  being  read,  referred  by 
the  President  to  the  appropriate  committee  without  debate." 

Mr.  Neill,  of  Grant:  Mr.  President,  I  move  you,  Sir,  that  the 
House  give  consent  to  the  present  consideration  of  this  motion. 

A  Voice:     Mr.  President,  I  second  the  motion. 

The  President  of  the  Convention:  It  is  moved  that  the  rules 
be  suspended  in  order  that  the  House  may  consider  the  resolution. 
Those  of  the  opinion  that  the  motion  prevail  will  say  aye;  thosft 
of  the  contrary  opinion  will  say  no.  The  noes  have  it.  The 
motion  is  lost  and  the  resolution  is  referred  to  the  Committee  on 
Rules. 

Mr.  McGillicuddy,  of  Pennington:     Mr.  President,  I  have  a  reso- 
lution which  I  will  send  to  the  Clerk's  desk  for  reading. 

(The  Chief  Clerk  read  the  resolution,  which  was  to  the  effect 
in  substance,  that  a  committee  of  five  be  appointed  whose  duty 
it  should  be  to  communicate  with  President  Harrison,  requesting 
him  to  suspend  action  on  all  questions  being  considered  by  the 
Interior  Department  relating  to  the  establishment  of  mineral 
claims  on  school  lands  in  Dakota  until  North  and  South  Dakota 
were  admitted  to  statehood.) 

The  President  of  the  Convention:  The  resolution  is  referred 
to  the  Committee  on  School  Lands. 

Mr.  Clough,  of  Codington:  Mr.  President,  I  hold  in  my  hand 
a  letter,  and  hanging  upon  the  Stenographers'  desk  is  a  seal  from 


STATE  DEBT  57 


Mr.  John  Banvard,  of  Watertown.  I  move  you,  Sir,  that  it  be 
referred  to  the  Committee  on  Seal. 

The  President  of  the  Convention:  If  there  is  no  objection 
they  will  go  to  the  Committee  on  Seal. 

Mr.  Price,  of  Hyde:  Mr.  President ;  Delegate  Jeffries,  of  Clark 
County,  was  unexpectedly  called  home  after  the  session  of  the 
Convention  yesterday,  and  he  desires  to  be  excused  by  the  Con- 
vention until  next  Monday. 

The  President  of  the  Convention:  If  there  is  no  objection 
he  will  be  excused.  The  Chair  hears  no  objection. 

Mr.  Anderson,  of  Hand:  Mr.  President;  the  nature  of  my 
private  business  is  such  that  it  will  be  necessary  for  me  to  be 
absent  from  the  Convention  about  two  days,  and  I  ask  leave  of 
absence  for  Wednesday  and  Thursday. 

The  President  of  the  Convention:  If  there  is  no  objection 
you  will  be  excused. 

Mr.  Neill,  of  Grant:  Mr.  President,  I  move  you  that  the 
President  of  this  Convention  be  empowered  to  excuse  members 
of  this  Convention  for  three  days,  without  reference  to  a  committee. 

The  President  of  the  Convention:  The  resolution  is  referred 
to  the  Committee  on  Rules. 

Mr.  Neill,  of  Grant:  Mr.  President,  I  offer  the  following 
resolution:  Resolved,  that  the  Committee  on  Schedule  provide 
for  the  election  of  clerks  of  the  court  in  the  settled  counties  of  the 
state. 

The  President  of  the  Convention:  Referred  to  the  Committee 
on  Schedule. 

Mr.  Corson,  of  Lawrence:  Mr.  President,  I  desire  to  present 
a  resolution  to  the  Convention,  and  ask  its  reference  to  the  Com- 
mittee on  Public  Accounts  and  Expenditures. 

(The  resolution  was  read  by  the  Chief  Clerk  and  was  in  sub- 
stance that  the  indebtedness  of  South  Dakota  assumed  from  the 
Territory  in  becoming  a  state  be  not  included  in  the  limit  of  $500- 
000;  that  this  limitation  be  denned  in  the  Constitution  so  as  to 
state  that  the  indebtedness  of  the  State,  created  by  the  State, 
shall  not  at  any  time  exceed  $500,000;  that  the  inheritance  of 
South  Dakota's  share  of  the  Territorial  indebtedness  is  not  PER 
SE  a  state  debt. 

The  President  of  the  Convention:  Referred  to  the  Committee 
on  State,  County  and  Municipal  Indebtedness. 


58  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Smith  of  Charles  Mix:'  Mr.  President,  I  would  ask  to 
be  excused  from  this  Convention  for  tomorrow. 

The  President  of  the  Convention:  If  there  is  no  objection 
it  is  so  ordered.- 

The  President  of  the  Convention:  What  is  the  further  pleas- 
ure of  the  Convention? 

Mr.  Lee,  of  Spink:  Mr.  President,  if  there  is  no  objection  I 
should  be  glad  to  occupy  about  a  minute  asking  a  personal  favor. 

The  President 'of  the  Convention:  Proceed,  if  there  is  no 
objection; 

Mr.  Lee,  of  Spink:  Mr.  President  and  Gentlemen  'of  this 
Convention:  When  I  ca-rrie 'to  Dakota  I  retired  to  private  life; 
I  am  here  prepared,  however,  doing  the  best  I  can,  practicing  for 
the  purpose  of  manufacturing  and  making  a  speech  or  lecture  or 
whatever  you  may  call  it — not  to  run  for  any"  office  or  to  make 
any  money,  but  to  do  a  little  good.  T  should  like  to  deliver  the 
lecture  here  in  this 'hall.  I  have  been  asked  to  several  times  by 
the 'church  people.  'I  want  especially '  Mr.  Caldwell  to  come.  I 
would  like  to  have  you  all  come,  not  that  I  expect  to:  play  Henry 
Clay  or  Daniel  Webster,  but  because  with  my  hand  lifted  toward 
Heaven  I  want  to  do  good.  :  I  hope  the  members  will  listen  to  the 
announcement,  and  give  Father  Lee  one  more  chance.  My  text 
will  be  "The  Fatherhood  of  God,  the  Brotherhood  of  Man,  and  the 
Good  of  Prohibition  Generally."  (Great  applause.) 

The  President  of  the  Convention:  The  Clerk  suggests  that 
if  the  delegates  will  leave  their  names  on  the  blotter  or  upon  a 
piece  of  paper  upon  their  desks,  he  will  have  them  printed  and  placed 
on  the  desks  so  that  everyone  will  know  the  seat. 

Mr.  Neill,  of  Grant:  Mr.  President,  the  committee  appointed 
to  go  to  Bismarck  would  like  to  ask  of  this'  Convention  whether  it 
would  be  willing  to  grant  them  one  of  the  official  stenographers, 
if  they  deem  it  necessary  that  they  have  one  of  them.  We  think 
perhaps  that  the  labors  of  this  Convention 'as  a  whole  will  not  be 
very  cumbersome,  as  it  will  be  mostly  committee  work,  and  one 
of  the  official  stenographers  will  perhaps  be  enough  to  leave  "be- 
hind, and  the  other  might  be  a  great  convenience  and  an  accom- 
odation  to  us;  and  if  we  should  deem  it  necessary  to  have  him, 
we  would  like  that  the  President  of  this  Convention  be  authorized 
to  grant  him  that  leave  of  absence  to  accompany  us. 

Mr.  Atkinson,  of  Brookings:     Mr.  President,  I  understood  the 


STENOGRAPHER  TO  JOINT  COMMISSION  59 

arrangement  of  this  Committee  was  that  they -had  the  power  to 
employ  such  help  as  they  need.  It  occurs  to  me  that  if  they  need 
a  stenographer  that  they  ought,  in  this  great  Territory,  to  be  able 
to  secure  one  without  taking  our  stenographers  away  from  us.  It 
would  not  be  only  a  hardship  for  us  to  lose  them,  but  it  would  be 
an  additional  expense  to  take  one  from  here,  for  there  is  not  only 
his  mileage  and  expenses  on  the  road,  but  it  would  consume  sev- 
eral days  on  the  road.  They  certainly  can  find  some  talent  in  the 
great  Territory  of  Dakota  at  that  time. 

Mr.  Neill,  of  Grant:  Mr.  President,  it  was  a  matter  of  economy 
with  us,  and  in  order  not  to  hire  an  additional  stenographer,  because 
the  pay  of  this  one  is  going  on  while  he  is  here;  and  also  the  fact 
that  it  is  impossible  to  secure  a  stenographer  at  Bismarck.  Governor 
Mellette  has  to  come  to  Watertown  to  get  one,  otherwise  to  St. 
Paul  or  Minneapolis. 

Mr.  Ringsrud,  of  Union:  Mr.  President,  I  move  you  that  the 
President  of  this  Convention  be  authorized  to  designate  one  of 
the  official  stenographers  of  this  Convention  to  accompany  the 
Commission  to  Bismarck. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  President  of  the  Convention  shall  designate  one  of  the  official 
stenographers  to  accompany  the  Joint  Commission  to  Bismarck. 
Is  the  Convention  ready  for  the  question?  Those  of  the  opinion 
that  the  motion  prevail  will  say  aye ;  those  of  the  contrary  opinion 
say  no.  The  ayes  have  it  and  the  motion  prevails. 

Mr.  Zitka,  of  Bon  Homme:  Mr.  President,  I  move  that  the 
Convention  do  now  adjourn. 

Mr.  Van  Buskir-k,  of  Codington:  Mr.  President,  I  would  like 
to  be  excused  for  two  days.  Our  term  of  court  is  in  session  and 
I  have  been  telegraphed  to  come  there. 

The  President  of  the  Convention:  It  is  so  ordered  unless 
objection  is  made. 

Mr.  Caldwell,  of  Minnehaha:  It  is  desired  by  several  of  the 
members  to  meet  Mr.  Hubbard,  the  financial  head  of  this  institu- 
tion; and  if  he  is  now  present  I  would  like  that  he  be  presented, 
in  case  any  of  the  gentlemen  desire  to  fix  up  their  finances. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  Convention  do  now  adjourn.  Those  of  the  opinion  that  the 
motion  prevail  will  say  aye;  those  of  the  contrary  opinion  say  no. 


60  SOUTH  DAKOTA  DEBATES  1889 

The  ayes  have  it  and  the  Convention  stands  adjourned  until 
tomorrow  at  two  o'clock. 

ADJOURNED. 


SEVENTH  DAY. 

Sioux  Falls,  Dakota,  July  10,  1889. 

Two  o'clock  P.  M. 

Convention  called  to  order  by  the  President. 

The  Chaplain:  Oh  Lord,  our  God,  Thou  who  art  the  Ruler 
of  the  Universe,  who  are  the  God  of  nations,  we  thank  Thee,  that 
Thou  hast  given  us  the  privilege  of  taking  a  part  in  this  the  forma- 
tion of  a  government  that  shall  be  worthy  the  name  of  the  children 
of  a  living  God.  We  do  ask  Thee,  that  Thou  wilt  help  each  in- 
dividual member  of  this  Convention,  that  in  our  going  out  and 
coming  in  before  this  people  we  shall  reflect  credit  upon  those  who 
have  sent  us  here,  and  in  the  work  that  Thou  hast  intrusted  to  our 
hands  may  we  do  great  good  for  humanity ;  in  the  name  of  Jesus 
Christ  we  ask  these  favors, 

AMEN. 

The  President:  The  suggestion  that  I  made  yesterday  after- 
noon I  think  will  expedite  matters  somewhat  and  tend  to  stop 
encumbering  the  record;  that  where  the  Journal  shows  a  clerical 
error  only,  for  the  delegates  to  call  at  the  Clerk's  desk  afterwards 
and  it  will  be  corrected  without  taking  the  time  of  the  Convention 
and  without  incumbering  the  records.  If  it  is  a  substantial  error 
needing  the  attention  of  the  Convention,  it  may  be  b.tter  to  call 
the  .attention  of  the  Convention  to  it,  but  if  a  clerical  error  it  can 
be  changed  by  the  Clerk  at  the  Clerk's  desk  at  any  time. 

Mr.  Price:  I  move  that  the  reading  of  the  Journal  be  dis- 
pensed with. 

Which  motion  prevailed  by  a  rising  vote  of  thirty  ayes,  to 
nineteen  nays. 

Mr.  Spooner:  I  desire  to  present  a  resolution  for  the  purpose 
of  memorializing  Congress  upon  the  development  of  our  artesian 
system,  and  request  that  it  be  referred  to  the  Committee  on  Federal 
Relations  and  Internal  Improvements. 


62  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Sterling:     I  ask  for  the  reading  of  the  resolution. 

Thereupon  the  Clerk  read  as  follows: 

A  Memorial  to  the  Congress  of  the  United  States  requesting 
the  appointment  of  a  Commission  for  the  purpose  of  making  a 
geological  and  hydrographic  survey  of  the  State: 
To  THE  CONGRESS  OF  THE  UNITED  STATES: 

The  Constitutional  Convention  of  the  State  of  South  Dakota 
duly  assembled,  would  respectfully  represent  to  your  honorable 
bod'y  that  it  has  been  demonstrated  that  within  the  limits  of  South 
Dakota  there  exists  what  is  known  as  an  artesian  basin  or  system, 
but  that  its  extent  has  not  been  fully  determined.  And  that  a 
desire  is  being  generally  expressed  by  the  people  of  South  Dakota 
that  the  matter  be  investigated  and  the  extent  of  the  system  fully 
determined  and  its  availability  for  the  purposes  of  agriculture  and 
manufactures  be  determined. 

Now,  therefore,  the  said  Convention  would  respectfully  memor- 
ialize your  honorable  body  and  request  you  to  appoint  at  the 
earliest  possible  time  a  Commission  for  the  purpose  of  making,  and 
with  power  to  make,  a  thorough  and  complete  geological  and  hydro- 
graphic  survey  pf  the  State,  including  the  mineralogical  formation 
of  the  Black  Hills  and  the  artesian  basin  of  South  Dakota,  and 
that  you  make  the  necessary  appropriations  therefor. 

The  President:     It  will  be  referred  as  requested. 

Mr.  Jolley:  I  have  a  report  from  the  Committee  on  Rules;  I 
will  read  it. 

Sioux  Falls,  Dakota,  July  10,  1889. 
MR.  PRESIDENT: 

Your  Committee  on  Rules  have  instructed  me  to  report  that 
they  recommend  that  Rule  33  shall  be  amended  to  read  as  follows: 

RULE  33.  All  motions  and  resolutions  not  pertaining  to  the 
current  business  of  the  Convention,  shall  be,  upon  being  read, 
referred  by  the  President  to  the  appropriate  committee  without 
debate,  and  such  motion  or  resolution  shall  not  be  printed  in  the 
Journal  until  reported  from  the  committee. 

And  I  am  further  instructed  by  the  Committee  on  Rules  to 
report  that  they  recommend  an  additional  rule  for  the  government 
of  this  Convention,  to-wit ; 

RULE  45.  That  the  President  of  this  Convention  is  authorized 
and  empowered  to  grant  leave  of  absence  to  any  member  of  this 
Convention  for  a  period  not  to  exceed  three  days. 

JOHN  L.  JOLLEY, 

Chairman. 

Mr.  Jolley:  I  move  the  report  of  the  Committee  on  Rules 
be  adopted. 

Which  motion  prevailed. 


LOANING  SCHOOL  FUHDS  63 

Mr.  Caldwell:  I  would  ask  if  this  that  has  been  just  done 
means  an  amendment  to  the  Rules  ? 

The  President:  I  understand  it  means  an  amendment  of 
the  rules  in  this:  One  rule  is  amended  and  a  new  rule  added. 

Mr.  Jolley:     Rule  33  is  amended,  and  Rule  45  is  a  new  rule. 

Mr.  Caldwell:  I  believe  it  is  required  that  for  an  amendment 
of  the  Rules  it  is  necessary  that  there  be  a  two-thirds  majority? 

Mr.  Jolley:     The  gentleman  from  Minnehaha  is  correct. 

Mr.  Caldwell:  I  raise  the  question  that  there  is  nothing  but 
a  roll  call  or  registering  the  vote  would  show  a  vote  to  be  a  two- 
thirds  majority.  Where  a  special  number  of  any  deliberative 
body  is  required  in  order  to  adopt  any  measure  we  must  do -some- 
thing which  is  documentary  evidence  of  the  fact  that  a  sufficiency 
is  secured, 

Mr.  Jolley:  If  there  is  no  individual  objects  and  no  ayes 
and  nays  or  division  called  for  it  is  presumed  that  two-thirds  are 
voting  in  the  affirmative  on  a  measure  under  consideration. 

The  President:  There  is  a  rule  which  reads  differently  in 
some  of  the  states ;  in  some  of  the  states  the  constitutional  provision 
is  that  in  certain  duties,  it  shall  take  two-thirds  of  all  elected  to 
the  office  to  constitute  a  quorum ;  this  is  two-thirds  of  those  present. 
I  apprehend  the  usual  rule  is,  that  all  those  that  are  voting  are  the 
only  ones  considered  voting,  unless  it  lacks  a  quorum;  and  if  all 
vote  aye,  and  none  vote  no,  it  does  not  need  a  roll  call  to  decide 
that  two-thirds  are  voting  aye.  This  will  be  the  ruling  of  the  Chair 
unless  the  Convention  orders  otherwise. 

Mr.  Sterling:     I  have  a  resolution  I  desire  to  present. 

WHEREAS:  It  is  provided  by  Section  11  of  Article  VIII  of 
the  Constitution  that  all  moneys  belonging  to  the  school  funds 
may  be  under  such  restrictions  as  the  Legislature  may  direct,  be 
loaned  and 

WHEREAS,  Section  IX  of  Article  VIII  of  the  Constitution  pro- 
vides no  lands  mentioned  in  this  article  shall  be  leased  except  for 
pasturage  and  meadow  purposes. 

BE  IT  RESOLVED:  That  said  Section  IX  of  the  Constitution 
be  so  amended  that  said  school  lands  may  be  leased  for  pasturage, 
meadow  and  agricultural  purposes. 

The  President :     What  committee  do  you  ask  its  reference  to  ? 

Mr.  Sterling:     The  Committee  on  School  Lands. 

Mr.  Price:  I  desire  to  present  a  resolution,  and  desire  to  have 
it  referred  to  the  Committee  on  State  Institutions;  and  here  is 
another  I  desire  to  go  to  the  Legislative  Committee. 


64  SOUTH  DAKOTA  DEBATES  1889 

The  President:  The  Secretary  will  read  for  the  information 
of  the  Convention. 

The  Clerk:  A  proposition  to  amend  Section  III  of  Article  III 
of  the  constitution  of  1885: 

RESOLVED:  That  Section  Three  of  Article  Three  of  the  Con- 
stitution of  1885,  be  amended  by  striking  out  "who  shall  not  have 
attained  the  age  of  twenty-five  years"  where  they  appear  in  the 
first  and  second  clause  of  said  Section  Three. 

The  President:     That  is  referred  to  the  Legislative  Committee. 

The  Clerk:     Proposition  to  amend  Section  I  of  Article  XIV: 

RESOLVED:  That  the  charitable  and  penal  institutions  of  the 
State  of  South  Dakota  shall  consist  of  a  penitentiary,  insane  hos- 
pital, a  school  for  the  deaf  and  dumb,  a  school  for  the  blind,  a 
school  for  feeble  minded  children,  a  reform  school,  and  such  other 
charitable  and  penal  institutions  as  may  be  provided  by  law. 

The  President:  That  is  referred  to  the  Committee  on  State 
Institutions. 

Mr.  Clough:     I  offer  the  following  resolution: 

RESOLVED:  That  in  all  counties  where  no  Auditors  exist, one 
shall  be  elected  in  conformity  with  the  Constitution  at  the  October 
election. 

The  President:     Referred  to  the  Committee  on  Schedule. 

Mr.  Dickenson:  Have  we  not  a  special  order  for  today — 
reading  of  the  Constitution? 

The  President:  The.  Secretary  will  proceed  to  read  the  Con- 
stitution under  the  order  of  the  Convention,  yesterday. 

The  Clerk:     Article  1,  Name  and  Boundary, — 

Mr.  Zitka:  If  the  Convention  wishes  to  signify  certain  por- 
tions, I  am  willing. 

The  President :  Do  I  understand  that  as  the  Clerk  finishes 
reading  one  section  or  article  that  he  waits  for  the  members  of 
the  Convention  to  make  any  suggestions  with  reference  to  referring 
such  propositions  to  certain  committees? 

Mr.  Zitka:  I  think  that  would  be  better;  the  Clerk  will  read, 
and  at  the  end  of  each  article,  wait  just  a  moment. 

Mr.  Caldwell:  I  would  suggest  that  the  Constitution  be  read 
merely  by  captions  of  the  various  articles;  it  would  be  sufficient 
to  indicate  the  proper  committee  to  which  the  body  of  the  article 
be  referred,  as  the  purpose  of  this  reading  is  merely  for  reference 
by  title  it  seems  to  me  it  will  be  accomplished  faster ;  I  make  that 
motion,  Mr.  President. 

Which  motion  was  duly  seconded. 


REFERENCES  TO  COMMITTEE  65 

Mr.  Goddard:  Have  we  any  authority  to  copy  anything  that 
we  know  is  unreliable  as  the  copy  of  the  Constitutions  are? 

The  President:  I  suppose  if  its  accuracy  is  questioned  it 
will  have  to  be  compared  with  the  official  copy  of  the  Constitution 
which  will  probably  reach  here  tonight.  I  shall  place  the  other 
at  the  disposal  of  the  Chairman  of  the  proper  committee. 

Mr.  Lee:  Would  not  it  be  wise  to  postpone  this  reading 
until  the  other  comes,  and  save  reading  it  twice? 

Mr.  Cal dwell:  However  desirable  it  might  be  for  general 
purposes  to  have  a  correct  copy  of  the  Constitution,  it  can  hardly 
be  regarded  as  necessary  for  the  purposes  for  which  the  motion 
is  made, — which  is  merely  that  the  various  portions  of  the  Con- 
stitution may  be  referred  to  the  proper  committee. 

The  President:  The  motion  before  the  Convention  is  that 
the  Constitution  be  read  by  separate  articles  so  that  the  Conven- 
tion may  be  informed  that  certain  propositions  may  be  referred 
to  proper  committees;  the  gentleman  from  Minnehaha  moves  an 
amendment,  that  instead  of  the  articles  being  read,  that  the  cap- 
tions of  each  article  be  read  for  the  information  of  the  Convention; 
it  is  upon  the  amendment  the  Convention  will  now  act. 

The  amendment  prevailed. 

The  President:  The  Secretary  will  proceed  and  read  the  cap- 
tions of  each  article. 

The  Clerk:     Article  1:     Name  and  Boundary. 

Mr.  Caldwell:  The  reference  will  be  made  by  the  President 
of  the  Convention  without  a  formal  motion  from  the  body  of  the 
House. 

The  President:     What  did  I  understand? 

Mr.  Caldwell:  That  the  reference  to  the  proper  committee 
will  be  made  by  the  President  of  the  Convention ;  as  the  caption 
of  the  article  is  read,  the  President  will  announce  the  Committee 
to  which  it  is  referred.  At  least  that  is  the  ordinary  practice. 

The  President:  If  it  is  the  ordinary  practice,  it  is  where  I 
never  have  been;  this  is  the  Constitution  that  the  people  have 
ratified.  This  does  not  have  to  be  referred  except  as  the  committee 
itself  may  act  upon  it.  If  it  is  a  resolution  that  comes  in,  it  may 
be  referred. 

Mr.  Caldwell:  It  was  the  purpose  as  stated  by  the  gentleman 
who  made  the  motion  and  by  the  gentleman  who  moved  the  amend- 


66  SOUTH  DAKOTA  DEBATES,  1889. 

ment,  that  it  be  read  merely  for  the  purpose  of  dividing  up  the 
Constitution  among  the  various  committees,  in  order  that  it  may 
be  regularly  and  formally  in  the  hands  of  these  bodies  that  are  to 
consider  it  and  report  their  action  to  this  Convention.  It  does 
not  stand  here  therefore  in  the  nature  of  a  constitution  that  has 
been  adopted  by  the  people.  Merely  as  an  ordinary  document  for 
the  consideration  of  this  body  and  its  reference  would  therefore 
simply  be  properly  taking  the  course  which  ordinary  matters  for 
the  consideration  of  the  body  to  take. 

The  President:  I  would  suggest  to  the  gentleman  from  Min- 
nehaha  County,  that  I  differ  with  him  entirely  as  to  the  powers  of 
this  Convention;  if  the  Convention  so  orders  I  shall  make  the 
reference. 

Mr.  Clough:  I  then  move  that  at  the  reading  of  each  one  of 
these  captions  it  be  assigned  to  the  proper  committee. 

Mr.  Hole:  It  has  been  my  understanding,  and  I  think  it  is 
the  common  understanding  that  the  fact  when  this  was  submitted 
to  the  people,  it  fixed  this  as  the  constitution  of  the  State  of  Dakota, 
with  few  exceptions.  I  see  no  purpose,  no  object  other  than  merely 
for  comparison  that  this  Constitution  be  referred  to  any  committee. 

Mr.  Davies:  I  think  we  are  placing  a  great  responsibility  upon 
our  worthy  President  in  naming  the  committees  in  this  way.  It 
seems  to  me  it  will  be  a  very  difficult  task  for  the  President  to  refer 
these  without  any  aid  without  placing  the  work  in  conflict  with 
the  work  done  yesterday  where  this  same  work  has  been  referred 
to  committees. 

Mr.  Caldwell:  If  I  may  be  excused  for  speaking  so  many 
times,  I  would  say,  that  of  course  these  various  committees,  (for 
instance,  on  Name  and  Boundary)  all  these  various  committees 
have  been  appointed  but  they  can  act  only  upon  such  matters  as 
are  definitely  and  regularly  referred  to  them  by  this  body.  While 
it  is  true  that  this  Constitution  has  been  adopted  by  the  people,  still 
there  are  many  portions  of  it  other  than  those  enumerated  in  the 
Enabling  Act  which  will  require  some  sort  of  fixing  and  change,  in 
order  that  they  shall  agree  with  the  requirements  of  the  Omnibus 
Bill.  I  find  there  are  some  provisions  in  this  Constitution,  which 
will  not  need  to  be  changed  or  amended,  still  nevertheless  they  ought 
to  go  to  the  various  committees  to  be  reported  back  to  this  House 
and  then  be  incorporated  in  a  definite  official  formal  document 


REFERENCES  TO  COMMITTEE  67 

which  shall  be  prepared  by  this  body  to  be  submitted  to  the  people 
next  October.  It  does  not  make  any  difference  whether  any  par- 
ticular proposition  has  any  change  in  it  whatever;  it  nevertheless 
has  to  be  voted  upon,  has  to  be  first  submitted  by  this  Convention; 
the  fact  of  the  provision  having  been  approved  at  the  election  in 
September,  1885,  does  not  give  it  any  standing  as  a  part  of  the 
fundamental,  law  of  this  commonwealth  at  this  time,  and  as  stated 
by  the  gentleman  from  Bon  Homme  the  purpose  of  this  reference 
is  to  refer  this  document  to  the  various  committees  in  order  that 
it  may  be  properly  reported  to  this  body;  I. would  therefore  again 
respectfully  refer  to  the  motion  which  has  been  made. 

The  President:  The  question  before  the  Convention  is 
whether  these  separate  articles  shall  be  referred  to  the  separate 
committees ;  the  Constitution  called  the  "Sioux  Falls  Constitution". 

The  motion  prevailed. 

Mr.  Huntley:  As  the  Secretary  proceeds  to  read  the  captions, 
I  move  that  the  President  assign  it  to  the  various  committees. 

The  President :  I  have  no  idea  that  this  Convention  can  amend 
one  of  these  articles  except  that  it  comes  within  the  requirements 
of  the  Omnibus  Bill ;  I  want  it  to  be  understood  that  this  reference 
is  by  the  Convention. 

Mr.  Zitka:  I  made  the  motion  that  the  different  provisions 
of  this  Constitution  be  referred  so  that  those  which  might  be  changed 
may  be  considered  by  the  proper  committees  and  that  those  com- 
mittees may  turn  to  their  work  or  proceed  to  work.  Some  of  us 
are  anxious  to  get  home,  and  they  do  not  know  as  yet  what  their 
duties  are  with  reference  to  the  Convention;  therefore  let  the  Con- 
stitution be  referred  to  the  different  committees,  that  each  committee 
may  make  their  report  after  examination;  if  there  is  anything  to 
do;  let  them  do  it, — if  they  cannot  do  anything,  that  ends  their 
work.  The  captions  in  each  and  every  one  of  these  articles  in  this 
Constitution  indicates  to  which  committee  that  portion  of  the  Con- 
stitution shall  be  referred,  and  I  do  not  think  there  will  be  any  dif- 
ficulty whatever  on  the  part  of  the  President. 

Mr.  Young:  I  move  the  Preamble  be  referred  to  the  Com- 
mittee on  Phraseology. 

Mr.  Caldwell  Not  desiring  to  be  captious,  I  would  question 
that  as  being  the  proper  reference ;  it  seems  me  that  it  should  go  to 
the  Committee  on  Bill  of  Rights.  The  very  name,  is  the  declaration 


68  SOUTH  DAKOTA  DEBATES  1889 

as  to  what  is  the  purpose  of  this  Committee  on  Arrangement  and 
Phraseology;  its  functions  comprise  only  the  work  of  getting 
together  in  proper  shape  the  matter  which  has  finally  been  adopted 
by  this  Convention. 

Mr.  Young::  There  is  certainly  nothing  in  this  Preamble 
that  interferes  with  any  rights  or  that  grants  any  of  our  personal 
rights ;  the  subject  matter  is  certainly  now  within  the  scope  of  the 
duties  of  the  Committee  on  Bill  of  Rights.  The  changes  to  be 
made  in  the  Preamble  is  simply  to  change  the  name  of  the  state ; 
it  seems  to  me  that  comes  purely  within  the  scope  of  the  duties 
of  the  Committee  on  Arrangement  and  Phraseology. 

Mr.  Boucher:  It  seems  to  me  as  I  look  at  it,  that  as  the  Pres- 
ident is  to  assign  these  captions,  that  this  motion  is  out  of  order. 

Mr.  Sterling:  I  second  the  motion;  it  is  my  idea  that  there 
was  no  committee  now  to  which  this  might  be  assigned;  there  is 
no  committee  given  us  by  the  Committee  on  Rules  on  Preamble; 
hence  I  think  as  the  gentleman  moved  that  the  Committee  on 
Arrangement  and  Phraseology  is  the  proper  Committee  to  which 
this  might  be  referred,  for  the  reasons  stated. 

Mr.  Williams:  It  seems  to  me  the  only  change  that  is  neces- 
sary to  be  made  is  in  the  name  of  the  State,  that  the  proper  com- 
mittee would  be  the  Committee  on  Name,  Boundary  and  Seat  of 
Government.  Perhaps  I  am  not  informed. 

Mr.  Fellows:  I  move  as  an  amendment,  that  it  be  referred 
to  the  Committee  on  Bill  of  Rights. 

Which  motion  was  lost  by  a  rising  vote  of  forty-one  ayes,  and 
fourteen  nays. 

The  original  motion  prevailed,  by  a  rising  vote  of  thirty-eight 
ayes  and  ten  nays. 

The  President:  The  Preamble  stands  referred  to  the  Com- 
mittee on  Arrangement  and  Phraseology. 

Clerk:     Article  1,  Name  and  Boundary. 

The  President:  Unless  otherwise  directed,  this  will  be  re- 
ferred to  the  Committee  on  Name  and  Boundary. 

Clerk:     Article  2,  Division  of  the  Powers  of  Government. 

The  President:  Will  the  gentleman  from  Bon  Homme  indi- 
cate what  committee  he  desires  that  referred  to  ? 

Mr.  Zitka:  I  will  leave  it  to  you  Mr.  President,  to  indicate 
the  Committee. 


REFERENCES  TO  COMMITTEE  69 

Mr.  Caldwell:  In  order  that  the  tail  may  go  with  the  hide,  I 
move  that  it  be  referred  to  the  Committee  on  'Arrangement 
and  Phraseology. 

Motion  was  not  seconded. 

Mr.  Spooner:  I  move  that  it  be  referred  to  the  Executive 
and  Administrative  Committee. 

Which  motion  prevailed,  and  the  President  declared  it  so 
referred. 

Clerk:     Article  3,  Legislative  Department. 

The  President:  Referred  unless  otherwise  ordered,  to  the 
Legislative  Committee,  No.  3. 

Clerk:     Article  4,  Executive  Department. 

The  President:  Unless  otherwise  ordered,  to  Committee  Xp. 
2,  Executive  Department. 

Clerk:     Article  5,  Judicial  Department. 

The  President:  Committee  No.  1,  unless  otherwise  directed, — 
Judiciary. 

Mr.  Caldwell:  I  would  call  attention  to  the  fact  that  part  of 
Article  5,  refers  to  apportionment  of  the  Judicial  Circuits  o  the 
State,  and  would  ask  if  it  might  not  be  proper  to  refer  so  much 
of  it  to  the  Committee  on  Apportionment. 

Mr.  Caldwell:     I  withdraw  the  suggestion. 

Clerk:     Article  6,  Bill  of  Rights. 

The  President:  What  committee  will  you  have  that  referred 
to? 

Mr.  Westcott:  I  move  that  it  be  referred  to  the  Committee 
on  Bill  of  Rights. 

The  President:     Referred  to  Committee  No.  4,  Bill  of  Rights. 

Clerk      Article  7,  Election  and  Right  of  Suffrage. 

The  President:  Unless  otherwise  ordered,  to  Committee  No. 
5. 

Article  8 — Referred  to  Committee  No.  8,  Education  and  School 
Lands. 

Article  9,  County  and  Township  Organization.  Referred  to 
Committee  No.  11,  County  and  Township  Organization. 

Article  10,  Municipal  Corporations.  Referred  to  No.  9,  Mu- 
nicipal Corporations. 

Article  11,  Revenue  and  Finance.  Referred  to  No.  13,  Revenue 
and  Finance. 


70  SOUTH  DAKOTA  DEBATES  1889 

Article  12,  Public  Accounts  and  Expenditures.  Referred  to 
Committee  No.  14. 

Article  1*3,  Public  Indebtedness.  Referred  to  Committee  No. 
12. 

Article  14,  State  Institutions.  Referred  to  Committee  No.  15. 

Article  15,  Militia.     Referred  to  Committee  No.  22. 

Article  16,  Impeachment  and  Removal  from  Office. 

Mr.  Caldwell:     I  suggest  the  Judiciary  Committee. 

Mr.  Zitka:  I  think  the  Legislative  Committee  is  the  proper 
Committee.  The  Legislature  is  the  body  that  tries  impeachments. 

Mr.  Price:  I  move  that  it  be  referred  to  the  Legislative 
Committee. 

Which  motion  was  duly  seconded. 

Mr.  Caldwell:  Impeachment  is  certainly  a  judicial  proceeding, 
and  not  legislative;  it  seems  to  me  the  original  suggestion  ought 
to  prevail,  that  it  be  referred  to  the  Judiciary  Committee,  not  the 
Legislative;  I  offer  as  an  amendment,  that  it  be  referred  to  the 
Judiciary  Committee. 

Which  motion  received  a  second. 

Mr.  Spooner  called  to  the  chair,  and  President  Edgerton  took 
the  floor. 

Gentlemen  of  the  Convention:  I  do  not  concede  for  a  moment 
that  under  the  provisions  of  the  Omnibus  Bill,  this  Convention  has 
any  authority  to  adopt  the  course  we  are  now  pursuing.  The 
interests  at  stake  are  far  too  momentous  to  make  any  mistake  in 
this  matter.  It  is  for  that  reason  that  I  present  these  views.  I 
may  not  represent  a  majority  of  this  Convention.  It  is  my  opinion 
that  we  cannot  change  a  branch  of  this  Constitution;  we  have  these 
questions  that  have  been  ratified  by  the  people  and  there  is  no 
power  in  this  Convention  to  alter,  or  change  or  add  to  this  article 
on  impeachment.  That  is  the  question  you  are  now  referring. 
Taking  from  the  Constitution  and  referring  it  ito  a  committee  they 
must  act  upon  it ;  that  is  annuling  the  Constitution. 

Mr.  Caldwell:  While  I  agree  perfectly  with  the  gentleman 
from  Davison,  that  it  is  beyond  the  province  of  this  Convention 
to  order  anything  not  contemplated  by  the  Omnibus  Bill,  it  is 
nevertheless  a  fact  that  this  Convention  will  very  much  expedite 
its  business  if  it  shall  refer  these  various  subjects  to  proper  com- 
mittees and' allow  them  to  inform  the  Convention  bv  their  examin- 


EDGERTON  OPPOSES  REVISION  71 

ation  as  to  whether  or  not  there  be  anything  contained  within  any 
particular  Article  that  may  or  may  not  come  within  the  scope  of 
the  Enabling  Act.  The  Enabling  Act,  in  addition  to  providing 
certain  specific  changes,  such  as  those  referring  to  the  name  of  the 
state,  and  such  as  referring  to  the  boundary  of  the  state,  and  such 
as  referring  to  apportionments,  also  requires  that  there  shall  be 
such  other  changes  as  shall  be  necessary  to  make  this  Constitution 
comply  with  the  requirements  of  the  Enabling  Act.  Now  whether 
or  not  there  be  anything  in  the  particular  Article,  needing  change, 
this  Convention  cannot  at  this  time  determine,  and  it  could  scarcely 
determine  otherwise  than  by  having  it  read ;  a  much  better  way,  and 
the  way  which  was  contemplated  by  the  gentleman  who  offered 
the  motion  which  prevailed  here,  was  that  these  various  portions 
of  the  Constitution  should  be  referred  to  these  several  committees, 
not  that  changes  which  are  necessary  be  reported  by  such  com- 
mittees but  that  such  committee  should  determine  whether  or  not 
there  is  anything  in  the  respective  provision  that  does  need  chang- 
ing. This  is  a  matter  which  it  seems  to  me  is  freely  within  the 
scope  of  the  powers  of  this  Convention  and  of  its  Committees. 
Take  for  instance  the  Preamble;  now  there  is  nothing  in  the  En- 
abling act  which  refers  to  any  change  in  the  Preamble ;  nevertheless 
a  change  in  the  Preamble  is  necessary,  because  it  reads,  "We  the 
people  of  Dakota".  There  is  to  be  a  change  in  the  name  of  this 
commonwealth,  and  that  name  must  be  stated, — at  least  suggested 
or  best  brought  before  this  Convention  for  action,  by  having  it 
come  in  the  way  of  a  report  from  a  committee.  As  I  say  with 
regard  to  this  particular  Article  16,  whether  or  not  there  be  any- 
thing in  that  that  necessitates  a  change  in  order  that  it  shall  comply 
with  the  provisions  of  the  Enabling  Act,  how  is  the  Convention  to 
know ;  each  member  may  know  by  reading  whether  or  not  that  be 
the  case,  but  this  Convention  as  a  body  cannot  know  it  until  it  be 
communicated  to  it  and  that  particular  part  be  before  it ;  it  there- 
fore seems  to  me  to  be  perfectly  practical,  and  absolutely  necessary 
that  every  article, — that  every  part  and  parcel  of  this  Constitution 
and  the  Schedule  and  Ordinance,  should  be  referred  in  order  that 
the  action  or  .non-action  may  come  before  this  Convention  regu- 
larly and  properly. 

Mr.  Jolley:     I  do  not  see  for  the  life  of  me,  why  there  is  to 
be  any  value  attached  to  this  document,  the  Constitution  of  the 


72  SOUTH  DAKOTA  DEBATES  1889 

Convention  of  1885,  outside  of  the  fact  that  they  did  their  work  and 
signed  it.  The  people  last  May  said  they  would  support  by  a  large 
majority  th£  Sioux  Falls  Constitution  and  that  a  constitutional 
convention  should  meet  here  to  make  such  changes  as  should  be 
made  under  .the  Enabling  Act.  That  constitution  so  passed  by  a 
constitutional  convention  in  1885  was  an  instrument  signed  by 
men  composing  that  Constitutional  Convention,  who  then  sub- 
mitted it  to  the  people;  that  instrument,  as  an  instrument,  has 
nothing  at  all  to  do  with  this  Convention ;  we  do  not  know  what  it 
is;  it  can't  come  before  us,  it  is  something  that  has  to  be  referred 
to  our  Committees  here  in  order  to  know  what  it  is.  How  can  it 
more  properly  be  done,  than  in  this  manner?  For  instance  the 
question,  Impeachment  and  Removal  from  Office,  is  submitted  to 
a  committee;  there  possibly  may  not  be  any  changes  in  it;  there 
certainly  is  not  that  I  have  seen  from  reading  it  through  since  this 
discussion  began.  But,  Sir,  when  that  committee  comes  in,  and 
says  that  that  is  the  Article  that  we  report  as  your  committee  on 
Impeachment  and  Removal  from  Office,  and  it  is  adopted  and 
ratified  by  this  Convention,  then  it  is  the  act  of  this  Convention. 
There  is  no  other  way  that  we  can  tell  whether  changes  can  be 
made;  and  there  is  no  member  on  the  floor  of  this  Convention  that 
will  watch  any  closer  not  to  violate  the  provisions  of  the  Omnibus 
Bill,  than  I  will.  I  have  lived  too  long  in  this  country  as  a  territory 
to  risk  again,  the  chance  of  voting.  I  will  go  as  far  as  the  gentleman 
from  Davison;  as  far  as  he  can  possibly  do  to  avoid  overstepping 
our  powers  under  the  Omnibus  Bill,  but  I  cannot  possible  see  how 
this  Convention  can  take  action  without  these  propositions  are 
referred  to  committees,  and  they  may  make  their  report  to  this 
body  for  their  final  action.  That  constitution  that  was  passed 
in  1885,  is  in  the  hands  of  the  President  of  this  Convention  to  remain 
there  until  he  places  it  in  the  hands  of  the  Secretary  of  the  State  of 
South  Dakota.  He  is  the  custodian  of  it  now  It  is  not  before 
this  Convention  in  any  way ;  but  it  can  be  brought  before  these 
committees  and  they  can  by  comparison  decide  whether  it  is  the 
same  constitution  adopted  at  that  time, — and  then  report  to  this 
Convention,  and  this  Convention  then  votes  on  those  articles.  We 
cannot  adopt  a  Constitution  not  in  the  hands  of  this  Convention; 
we  cannot  say  what  it  is ;  we  cannot  sign  an  article  if  it  remains  in 
our  President's  hands ;  it  cannot  be  enrolled  in  his  hands.  It  cannot 


JOLLEY'  VIEWS  ON  REVISION  73 

be  brought  before  this  body  in  any  other  way  than  by  reference ; 
it  cannot  be  considered  by  committee  without  reference. 

Mr.  Edgerton  from  Davison:  I  may  have  been  in  fault;  I 
stated  my  opinion  fairly  upon  this  floor  as  a  lawyer ;  I  have  no  doubt 
upon  the  proposition;  not  the  least  in  the  world,  but  if  it  will  sat- 
isfy the  gentleman,  I  will  withdraw  all  opposition;  but  for  myself 
I  do  not  think  Col.  Jolley  and  myself  will  differ  upon  that,  that 
it  is  impossible  for  this  Convention  to  alter  a  single  phrase  of  that 
Constitution  except  upon  the  grounds  made  in  the  Omnibus  Bill ; 
it  cannot  be  done ;  but  if  it  will  satisfy  these  two  gentlemen  that 
they  vote  upon  it  again,  I  am  satisfied.  I  thought  the  reference 
might  possibly  imply  the  right  to  change,  so  I  interposed  this  ob- 
jection, but  if  it  will  satisfy  anyone  that  it  shall  be  rererred,  I  have 
no  objection.  This  may  be  said  in  its  favor;  I  didn't  know  yester- 
day, when  I  made  the  long  list  of  committees,  that  many  of  them 
would  not  have  much  to  do,  and  if  this  will  exalt  the  character  of 
these  committees  that  I  appointed  yesterday  and  give  them  more 
prominence  before  this  Convention,  and  in  the  State,  I  would  be 
the  last  one  to  throw  a  straw  in  their  way.  I  do  not  know  how 
many  of  my  friends  are  upon  these  committees,  but  in  order  that 
those  committees  may  be  exalted,  I  withdraw  all  objection  and  let 
all  these  articles  go  before  these  committees  as  if  they  had  never 
been  ratified  by  a  former  convention,  elected  by  the  people  of  1885, 
as  if  it  never  had  been  ratified  by  Congress,  and  yet  not  ratified  by 
the  people  on  the  4th  of  May  last ;  I  withdraw  all  objection  and  let 
it  come  before  the  committees. 

Mr.  Jolley:  So  far  as  I  am  concerned  myself;  I  hope  I  am  not 
so  foolhardy  as  to  set  myself  up  upon  so  bold  a  proposition  as  stated 
by  the  gentleman  from  Davison, — if  he  supposes  that  is  my  position. 
I  supposed,  Sir,  that  the  gentleman  from  Davison,  and  myself  were 
both  delegates  in  this  Convention,  each  entitled  to  an  opinion,  and 
if  we  differ,  we  can  differ  as  gentlemen,  and  that  is  the  way  we  do  ; 
I  state  it  is,  as  far  as  I  am  concerned.  I  will  state  again  to  the 
gentleman  from  Davison,  that  I  will  go  as  far  as  he  will  not  to 
change  any  article  in  the  Constitution  that  the  Omnibus  Bill  does 
not  allow  us  to  change;  I  will  oppose  dotting  an  "i"  or  crossing 
a  "t"  that  the  Omnibus  Bill  does  not  unqualifiedly  allow;  yet  I  do 
contend  that  the  only  way  we  can  get  at  it  is  by  referring  it  to 
committees  and  have  the  committees  report. 


74  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Hole:  I  have  no  special  objection  that  this  go  to  the 
committees;  that  may  be  the  best  way  to  facilitate  the  work  of 
this  Convention,  but  I  think  it  should  be  distinctly  and  unquali- 
fiedly understood  that  that  part  of  this  constitution  that  has  been 
ratified  by  the  people,  and  wherein  we  have  no  manner  of  right 
to  charge  that  that  stands  as  the  people  have  adopted  it  ;^we  do  not 
need  to  adopt  that  over  again. 

Mr.  Cal dwell:  In  my  judgement  it  makes  no  particu'ar 
difference  that  the  people  of  this  commonwealth  have  adopted  this 
Constitution,  except  that  we  have  it  here  now;  the  fact  that  it  is 
the  Constitution  of  1885,  would  make  no  particular  difference;  it 
would  be  as  incumbent  upon  this  body  to  take  up  every  line  of  it, 
and  re-adopt  it  now,  as  it  was  for  it  to  have  been  adopted  first,  be- 
cause, when  this  document,  the  Constitution  of  1889,  shall  go  out 
from  this  body,  not  only  must  go  out  that  part  which  may  be  ra- 
tified by  this  body,  but  there  must  go  with  it  and  with  the  seal  of 
this  Convention  upon  it,  also,  that  part  which  may  have  been 
brought  over  from  the  Constitution  of  1885,  which  was  re-adopted 
on  the  14th  of  last  May ;  and  those  who  maintain'  here  the  idea  of  the 
reference  to  committees,  do  not  have  any  idea  whatever  of  changing 
a  single  jot  or  title  of  that  which  ought  not  to  be  changed.  But 
it  is  claimed  by  them,  that  in  order  that  this  body  may  have  the 
action  of  the  Convention  of  1885  properly  before  it,  that  the  Con- 
stitution of  1885,  should  be  taken  and  allotted  to  these  respective 
committees  that  have  been  appointed  that  they  make  the  ex- 
amination. It  would  be  perfectly  proper  if  this  Convention  should 
see  fit,  to  go  to  work  and  examine  it  itself;  it  is  necessary,  however, 
that  this  Convention  shall  examine  and  shall  know  officially  what 
was  the  action  of  the  1885  Convention;  what  is  the  document  that 
Congress  has  said  shall  be  preserved  here ;  it  is  necessary  that  this 
Convention  shall  do  it ;  it  is  necessary  that  this  Convention  shall 
do  it  as  a  body, — determine  what  there  is  in  the  action  of  the 
Constitutional  Convention  of  1885,  that  shall  remain, — and  the 
very  much  easier  and  better  way,  is  to  allot  the  various  portions 
of  this  document  to  the  committees  which  have  been  appointed 
and  allow  them  to  report  and  thus  bring'  the  matter  before  this 
body;  and  if  any  other  idea  than  this  should  prevail,  what  would 
be  the  result?  There  would  have  to  be  submitted  to  the  people 
next  October,  two  documents, — at  least  two  parts  of  documents; 


CALDWELL'S  IDEAS  75 


there  would  have  to  be  submitted  to  the  people  next  October  for 
their  re-adoption  such  parts  of  this  Constitution  of  1885  as  were 
not  changed,  and  there  would  have  to  go  also  such  parts  of  this 
Constitution  as  were  necessarily  qualified  by  this  Convention; 
the  result  would  be  that  there  would  be  twins  presented  to  the 
people  of  this  commonwealth  for  their  adoption.  It  seems  to  me 
no  such  thing  as  that  was  contemplated  by  Congress;  the  object 
was  that  this  Convention  should  frame  a  document  out  of  what 
had  already  been  ratified  by  the  people  with  such  limitations  as 
were  prescribed  by  this  Enabling  Act. 

Mr.  Edgerton,  of  Davison:  I  ask  the  indulgence  of  this  Con- 
vention. The  gentleman  says,  that  unless  all  of  these  articles  are 
re-adopted  by  this  Constitutional  Convention  they  have  no  place 
in  the  fundamental  law  of  the  State;  that  is  not  my  understanding. 
I  ask  him  this ;  suppose  the  majority  of  this  Convention  do  not 
agree  upon  this  article  now  under  consideration,  Impeachment 
and  Removal  from  office,  can  this  Convention  blot  it  out  after  the 
people  have  ratified  it  twice,  and  after  the  Congress  of  the  United 
States  have  sent  it  here  under  the  existing  circumstances?  I  deny 
that  this  Convention  has  got  the  power  to  blot  out  that  article  on 
impeachment.  I  had  supposed  that  all  objections  were  withdrawn ; 
I  withdrew  all  that  I  had ;  I  want  it  referred  to  the  separate  com- 
mittees so  that  every  committee  may  have  something  to  do ;  I  an- 
nounced to  the  Convention  fairly  that  I  withdrew  all  objection; 
it  was  only  in  answer  to  that  one  proposition  that  I  asked  the  in- 
dulgence of  the  Convention. 

Mr.  Lee:  I  ask  the  Convention  if  Congress  has  not  made  a 
will,  complete,  signed,  sealed  and  delix-ered?  The  Honorable  Judge 
at  my  left,  is  right ;  we  have  no  occasion  or  right  to  prate  about  the 
will ;  I  do  not  believe  we  have  any  business  to  take  up  this  matter 
and  refer  it  to  committees  at  all;  it  is  already  fixed;  we  cannot 
change  it ;  we  can  take  the  whole  business  and  look  it  over  and 
come  back  and  make  a  half  a  dozen  changes  that  must  be  made, 
here  in  white  and  black.  What  is  the  use  of  spending  our  time  for 
nothing? 

Mr.  Davies:  I  think  this  discussion  will  settle  this  point  as 
to  future  points;  it  is  not  wasted  time;  it  is  something  that  is  liable 
to  come  up  at  any  time  until  the  question  is  settled.  I  see  no  way 
out  of  this  without  reconsidering  our  work  of  yesterday.  With 


76  SOUTH  DAKOTA  DEBATES  1889    ' 

reference  to  the  gentleman  from  Davison,  and  the  other  gentleman 
whose  countenance  I  do  not  remember  at  once,  I  do  not  think  there 
is  that  conflict  which  it  might  appear.  It  is  true  that  we  have 
light  from  both  these  sources;  the  Omnibus  Bill  is  our  authority; 
the  moment  we  get  out  of  that  we  find  rough  sailing.  The  Omnibus 
Bill  contemplates  that  this  Convention  take  every  line  and  adopt 
it  as  it  is  when  not  necessary  to  modify  it  according  to  the  directions 
of  the  Omnibus  Bill, — to  modify  it  when  and  where  we  are  told  to 
do  so  by  that  bill.  In  my  opinion  every  line  of  this  Constitution 
must  have  the  stamp  of  this  Convention  upon  it  before  we  can  pre- 
sent it  to  the  people  for  their  vote  next  October;  that  it  is  now 
understood  that  every  article  as  presented  to  the  committees, — 
that  these  committees  understand  that  they  are  not  to  change  only 
as  the  Omnibus  Bill  directly  tells  them  so.  This  work  will  be 
simplified,  and  we  can  hasten  on  with  it.  The  question,  it  seems 
to  me,  is  one  of  reference  to  the  committees.  I  shall  favor  reference 
to  the  Legislative  Committee,  if  that  is  the  motion  before  the 
House. 

Chairman:     Is  the  Convention  ready  for  the  question? 

Mr.  Zitka:  The  motion  was,  that  Article  16  be  referred  to  the 
Legislative  Committee:  "The  House  of  Representatives  shall 
have  the  sole  power  of  impeachment.  The  concurrance  of  a  majority 
of  all  members  elected  shall  be  necessary  to  an  impeachment". 
What  would  be  more  proper  than  the  Legislative  Committee  for 
this  reference?  Impeachments  are  tried  by  the  Legislature,  and 
every  member  of  the  Legislature  is  judge.  Therefore,  I  insist  as 
far  as  my  vote  is  concerned,  that  it  be  referred  to  the  Legislative 
Committee. 

Mr.  Caldwell:  I  ask  that  the  gentleman  will  look  at  Section 
3;  while  of  course  Section  1  refers  to  Legislative  Impeachment, 
there  is  a  good  deal  more  under  the  order  of  impeachment  than 
impeachment  of  the  members  of  the  Legislature;  Section  3  reads: 

(Here. insert  Section  3,  Article  16.) 

Certainly  that  is  judicial  matter. 

Mr.  Wescott:  I  move  an  amendment  to  the  amendment 
before  the  House 

The  Chairman:  The  previous  question  is  called  for;  I  think 
the  time  for  an  amendment  is  passed ;  are  you  ready  gentleman  for 
the  question? 


FURTHER  REFERENCES  TO  COMMITTEES  77 

Mr.  Davies:     Please  state  the  question. 

Mr.  Wescott:  Amendments  are  always  in  order.  My  amend- 
ment is  that  this  question  be  referred  to  the  Committee  on  Bill 
of  Rights  The  impeachment  is  the  right  of  the  general  public; 
but  at  the  same  time  there  are  rights  on  both  sides.  I  move  the 
question  be  referred  to  the  Committee  on  Bill  of  Rights. 

Mr.  Jolley:  What  is  the  condition  of  the  motion;  how  many 
amendments  are  there,  please? 

The  Chairman:  I  believe  there  are  two;  there  is  no  second 
to  the  last  motion. 

Mr.  Jolley:  I  move  an  amendment  to  the  amendment,  that 
this  bill  be  referred  to  the  Committee  on  Military  Affairs ;  my  reason, 
Sir;  for  moving  this  Committee  is,  that  the  Chairman  of  that  Com- 
mittee is  a  man  who  during  one  day  of  the  week  preaches  the  Gospel, 
and  he  does  all  he  can  to  preach  religion  in  its  purity  ;  the  other  six 
days  he  is  stirring  up  war  and  destruction  and  everything  that's 
bad ;  the  Chairman  of  the  Committee  that  I  ask  that  this  be  referred 
to  is  the  fighting  parson  from  Codington  County.  (Laughter.) 

Mr.  Atkinson:  I  second  the  amendment  to  refer  it  to  the 
Committee  on  Bill  of  Rights. 

Which  proposition  to  so  refer  was,  upon  coming  to  a  vote,  lost. 

The  Chairman:  The  question  recurs  upon  the  amendment 
to  refer  it  to  the  Judiciary. 

Mr.  Dickinson:  I  rise  to  the  point  of  order ;  if  the  main  amend- 
ment or  the  original  motion  is  now  before  us;  the  gentleman  from 
Minnehaha  County  moved  an  amendment  which  was  lost  and  the 
motion  now  refers  to  the  original  question. 

-  The  Clerk:  Our  record  shows  Mr.  Price  moved  Article  16  be 
referred  to  the  Legislative  Committee  and  Mr.  Caldwell  moved  to 
refer  it  to  the  Judiciary,  which  we  are  acting  upon  now. 

A  division  of  the  House  being  called  for  the  amendment  was 
lost  by  rising  vote. 

The  question  recurring  upon  the  original  motion,  the  motion 
prevailed  and  Article  16  was  referred  to  the  Legislative  Committee. 

The  Clerk:     Article  17,  Corporations. 

The  Chairman:  Will  the  President  assume  his  seat;  I  do  not 
wish  to  refer  these  myself. 

The  President  of  the  Convention  again  occupied  the  chair. 


78  .          SOUTH  DAKOTA  DEBATES  1889 

The  President:  What  committee,  Mr.  Zitka,  do  you  wish 
this  referred  to? 

Mr.  Zitka:  Number  ten,  Corporations  Other  Than  Banking 
and  Municipal. 

The  President:     It  is  so  referred. 

Article  18,  Banking  and  Currency,  was  referred  to  Committee 
No.  21,  Banking  and  Currency. 

Article  19,  Congressional  and  Legislative  Apportionment  was 
referred  to  Committee  No.  16,  Congressional  and  Legislative  Ap- 
portionment. 

Article  20,  Seat  of  Government,  was  referred  to  Committee 
No.  6,  Name,  Boundaries  and  Seat  of  Government. 

Article  21,  Miscellaneous,  was  referred  to  No.  27,  Miscellaneous 
Subjects. 

Mr.  Willis:  I  object.  This  Committee  will  have  to  be  oc- 
cupied with  Section  5.  I  foresaw  the  trouble  a  moment  ago  that 
we  would  get  in  a  squall  like  this ;  some  women  are  not  married — 

The  President:  Does  the  gentleman  ask  this  reference  to 
any  special  committee  or  do  you  ask  that  a  portion  of  it  be  referred 
to  one  Committee  and  a  portion  to  another. 

Mr.  Willis:  All  I  ask  for  is,  that  the  Committee  on  Rights  of 
Married  Women  have  their  portion  of  this  Article,  and  :f  it  is 
necessary,  ask  that  it  be  substituted. 

The  President:  If  I  understand  the  gentleman  it  is  this, 
that  Section  5,  of  Article  21,  be  referred  to  Committee  No.  20  on 
Rights  of  Married  Women. 

Mr.  Willis:  Perhaps  this  motion  should  cover  the  whole 
ground  that  the  different  sections  of  this  Article  be  referred  to  the 
Committees  that  are  named. 

Which  motion  prevailed. 

The  President:  ,  Section  1,  of  Article  21,  is  referred  to  Com- 
mittee No.  25,  Seal  of  State,  Coat  of  Arms,  and  Design  of  Same. 

Section  No.  2  is  referred  to  Committee  No.  28,  Compensation 
of  Public  Officers  and  Members. 

Section  No.  3, — to  what  committee  will  you  have  that  referred? 

Mr.  Caldwell:     I  would  suggest  No.  27. 

The  President:     It  will  be  so  referred. 


JUDGE  CARSON  ON  REVISION  79 

Section  4,  of  Article  21,  is  referred  to  Committee  No.  19,  Ex- 
emptions and  Personal. 

Section  5  is  referred  to  Committee  No.  20. 

The  Clerk:     Article  22. 

The  President:  It  is  referred  to  Committee  No.  7,  Federal 
Relations. 

Articles  23,  Amendments  and  Revision  of  the  Constitution,  is 
referred  to  Committee  No.  23,  Amendments  and  Revision  of  the 
Constitution. 

Article  24,  Prohibition. 

Judge  Corson:  I  move  that  further  consideration  of  this 
matter  be  postponed  until  two  o'clock  tomorrow ;  I  propose  to  move 
a  reconsideration  of  this  matter  in  order  to  have  this  question  dis- 
cussed this  afternoon  and  re-discussed  tomorrow.  I  think  we  ought 
to  have  a  full  understanding  of  this  matter  before  proceeding  any 
further. 

Mr.  Hole:  I  second  the  motion  of  the  gentleman  from  Law- 
rence. 

Mr.  Atkinson :  I  move  we  make  this  the  special  order  tomorrow 
at  ten  o'clock  and  that  when  we  do  adjourn  it  be  until  ten  o'clock. 

Mr.  Davies:  There  are  committees  to  meet  tomorrow  and 
it  will  be  impossible  to  do  committee  work  and  be  here  at  the  same 
time. 

Mr.  Dickinson:  It  seems  to  me  that  after  the  discussion  of 
this  subject  that  we  have  had  now  that  we  should  go  into  a  committee 
of  the  whole  and  discuss  the  proposition. 

Mr.  Corson:  I  object  to  that  motion  because  this  motion 
to  postpone  until  two  o'clock  tomorrow  is  made  for  the  express 
purpose  that  the  members  may  look  into  this  matter  carefully  I 
desire  to  look  into  it  myself  a  little  more;  I  desire  to  examine  it; 
it  may  be  a  very  important  question;  I  see  by  the  Omnibus  Bill 
that  the  Constitution  adopted  is  to  be  re-submitted.  Not  the  Con- 
stitution that  we  may  make  here,  but  the  Constitution  framed  in 
the  Convention  of  1885,  and  adopted,  it  is  to  be  re-submitted;  not 
some  other  Constitution, — not  something  that  we  may  make  here ; 
not  such  amendments  as  we  may  desire  to  make.  In  order  that 
we  can  proceed  intelligently  we  had  better  take  one  day  to  consider 
this  matter.  That  we  get  into  no  false  position  in  regard  to  this 
subject ;  hence  I  desire  •  time  to  examine  it ;  I  think  every  mem- 


80  SOUTH  DAKOTA  DEBATES  1889 

ber  here  desires  to  examine  it  carefully  and  proceed  with  care  in 
this  matter  because  it  is  a  matter  of  too  much  importance  to  pro- 
ceed hastily ;  hence  I  hope  the  gentleman  will  not  press  the  motion 
to  take  it  up  now  because  the  motion  is  made  to  postpone  it  until 
tomorrow  that  every  gentleman  in  this  Convention  may  himsqlf 
examine  it,  and  among  ourselves  compare  notes  and  get  at  the  true 
methods  on  which  we  are  to  proceed.  I  therefore  suggest  again 
that  it  is  an  extremely  important  matter  how  this  Constitution 
is  to  be  handled  in  this  Convention.  To  know  what  to  do  with  the 
Constitution  adopted  in  1885  to  be  re-submitted  in  October.  If 
we  are  ready  to  make  a  new  one  that  is  not  the  Constitution  of 
1885,  it  is  another  and  different  constitution,  and  there  is  doubt  if 
we  have  any  authority  or  power  to  make  it.  I  merely  throw  out 
the  suggestion  for  the  purpose  of  showing  the  importance  of  the 
question  before  the  Convention. 

Mr.  Lee:  I  think  after  we  have  all  slept  one  more  night  we 
shall  be  satisfied  to  go  by  the  Omnibus  Bill,  without  any  further 
debate. 

The  President:  The  gentleman  from  Lawrence  moves  the 
further  consideration  of  this  reference  be  postponed  until  tomorrow 
at  two  o'clock  and  made  a  special  order  for  that  hour.  An  amend- 
ment is  proposed,  that  it  be  made  a  special  order  for  tomorrow  at 
ten  o'clock,  and  when  this  Convention  adjourn,  it  adjourn  to 
meet  at  that  hour.  I  would  suggest  Rule  Thirty-four,  unless  it 
is  changed  makes  the  hour  of  meeting  at  two  o'clock  tomorrow; 
unless  it  is  changed  and  the  rule  modified.  If  the  Chair  is  right 
the  amendment  is  not  in  order. 

Mr.  Atkinson:  I  withdraw  the  amendment. 

The  President:  The  motion  before  the  Convention  is,  shall 
the  further  consideration  of  this  order  of  business  be  postponed 
until  tomorrow  at  two  o'clock  and  made  a  special  order  for  that 
time. 

Which  said  motion  prevailed. 

Mr.  Corson:  I  now  move  that  the  vote  by  which  we  adopted 
the  resolution  to  read  the  Constitution  and  refer  the  different  sub- 
jects to  the  proper  committee  be  re-considered,  and  that  motion 
be  made  the  special  order  for  tomorrow. 

Motion  duly  seconded. 

Mr.  Dickinson:      I  believe  in  a  full  discussion  of  any  matter 


REVISION  or  CONSTITUTION  OF  1885  81 

upon  which  we  differ;  it  seems  to  me  that  there  is  no  difference  of 
opinion;  I  hear  no  suggestion  from  any  of  the  speakers  that  they 
contend  for  an  amendment  of  the  Constitution.  We  only  differ 
as  to  the  methods  of  proceedure  in  doing  our  work.  I  am  for  one 
very  anxious  that  we  get  our  work  done  and  delay  no  longer  than 
necessary ;  I  wish  we  might  accomplish  more  each  day ,  in  session  and 
get  through  quicker;  for  that  reason,  I  am  opposed  to  this  motion. 
My  own  understanding  is  that  we  have  simply  to  deal  with  two 
documents,  that  we  have  no  power  of  amendment  at  all;  that  we 
have  our  requirements  in  the  Omnibus  Bill  to  carry  out,  and  this 
is  a  reference  to  the  different  committees  only  in  order  that  if  there 
is  any  change  in  accordance  to  the  requirements  of  the  Omnibus 
Bill,  they  can  so  report  it.  It  seems  to  me  a  delay  until  tomorrow 
is  an  unnecessary  delay ;  we  might  just  as  well  settle  that  here  as 
tomorrow. 

Mr.  Hole:  As  I  understand  the  question,  there  is  a  radical 
difference;  the  one  side  assumes  the  necessity  of  re-adopting  the 
Constitution;  of  going  through  and  referring  it  to  committees  and 
having  the  report  of  the  committees  which  pre-supposesthe  adoption 
of  it.  While  upon  the  other  hand  the  few  that  I  have  talked  with 
is  of  the  opinion  that  the  reference  is  simply  for  the  purpose  of 
comparison ;  that  we  cannot  adopt  it ;  we  have  no  such  right  as 
that ;  our  only  right  is  to  reveiw  it  and  compare  and  see  if  it  compares 
with  the  other,  and  is  the  Constitution  of  1885  which  has  been 
voted  upon  by  the  people.  All  we  have  to  do,  and  all  we  can  do 
under  the  Omnibus  Bill  is  merely  to  compare  that  and  then  make 
the  necessary  additions  and  carry  out  the  intention  of  the  Omnibus 
Bill.  There  is  a  direct  confliction  in  this  House  and  that  question 
should  be  settled.  I  think  if  we  have  time  to  consider  it  I  am 
satisfied  we  will  settle  it  right ;  I  do  not  want  to  see  it  settled  this 
afternoon;  I  want  to  give  it  some  study,  for  it  may  be  very  impor- 
tant. 

Mr.  Zitka:  There  was  no  intention  on  my  part  when  I  made 
this  motion  to  revise  the  Constitution,  nor  do  anything  of  the  kind; 
simply  to  comply  with  the  Omnibus  Bill ;  to  refer  the  Constitution 
to  the  different  committees  so  that  they  may  see  what  changes 
should  be  made  according  to  the  Omnibus  Bill.  That  there  are 
no  portions  of  the  Constitution  which  had  no  provision  in  the 


82  SOUTH  DAKOTA  DEBATES,  1889. 

Omnibus  Bill;  and  if  there  is  any  parts  of  the  Constitution  which 
has  no  provision  in  the  Omnibus  Bill,  to  leave  it  alone  without 
touching  it ;  without  doing  anything  with  it ;  and  what  parts  there 
are  that  require  any  changes — to  make  them.  That  was  the  only 
object.  The  only  way  to  get  at  this  was  to  refer  the  Constitution 
to  the  different  committees ;  because  if  we  took  time  in  Committee 
of  the  Whole,  or  in  Convention,  it  would  take  from  one  day  to  an- 
other and  I  think  we  would  not  get  through  this  summer.  As  far 
as  my  experience  goes,  that  is  the  only  proper  way  to  do  it,  and 
that  we  are  far  from  unanimous  upon  that  point  and  that  this 
motion  should  prevail. 

Mr.  Caldwell:  I  would  simply  call  attention  to  the  Enabling 
Act,  in  Section  Four:  "Whereupon  the  said  Convention"  (referring 
to  the  four  states  proposed)  "shall  be,  and  are  hereby  authorized 
to  form  constitutions  and  state  governments  for  said  proposed 
states  respectively."  And  then  with  regard  to  South  Dakota 
particularly:  "It  shall  be  the  duty  of  the  Convention  which  may 
assemble  at  Sioux  Falls,  as  herein  provided,  to  re-submit  to  the 
people  of  South  Dakota  for  ratification  or  rejection  at  the  election 
hereinafter  provided  for  in  this  act,  the  Constitution  framed  at 
Sioux  Falls  and  adopted  November  3,  1885,  and  also  the  articles 
and  propositions  separately  submitted  at  that  election,  including 
the  question  of  locating  of  the  temporary  seat  of  government, 
with  such  changes  only  as  relate  to  the  name  and  boundary  of  the 
proposed  state,  to  the  reapportionment  of  the  judicial  and  legis- 
lative districts,  and  such  amendments  as  may  be  necessary  in 
order  to  comply  with  the  provisions  of  this  Act." 

There  is  to  be  a  constitution  formed ;  the  powers  of  this  body 
include  that ;  and  it  is  to  be  re-submitted ;  so  that  such  submission 
as  has  been  had  heretofore,  cuts  no  figure  whatever.  As  I  said 
previously,  this  Constitution  of  1885,  or  one  like  it,  might  have  been 
submitted  annually  for  a  thousand  years  and  it  would  not  have 
made  any  difference;  would  not  have  given  it  a  single  particle  of 
validity,  now  or  hereafter.  The  Congress  of  the  United  States  has 
required  this  Convention,  that  it  shall  go  to  work  and  frame  a  Con- 
stitution; that  it  shall  re-submit  such  parts  of  this  Constitution 
of  1885  as  may  be  brought  over,  or  re-adopted  by  this  Convention. 
Of  course  if  this  Convention,  in  its  foolhardiness  should  see  fit  to 
run  counter  to  the  requirements  of  the  Enabling  Act,  or  the  people 


DISCUSSION  OF  REVISION  CONTINUED  83 

would,  and  to  suppose  that  it  is  the  purpose  of  any  committee  of 
this  body  or  of  this  body  itself  to  jeopardize  statehood  and  all 
blessings  which  we  have  hoped  from  it,  by  attempting  to  enact 
here  for  submission  to  the  people,  something  which  is  outside  the 
province  of  this  body  as  fixed  by  the  Congress  of  the  United  States, 
is  to  suppose  a  foolhardiness,  which  I  do  not  believe  the  history  of 
this  body  will  prove  to  have  been  just.  The  reference  to  a  com- 
mittee is  certainly  neither  by  implication  nor  by  necessity  nor  upon 
any  other  consideration,  any  attempt  whatever,  or  can  be  construed 
into  an  attempt  to  change  anything;  but  as  I  said  before  it  is  neces- 
sary for  this  body  to  have  regularly  before  it,  what  are  the  pro- 
visions of  this  Constitution  of  1885,  and  the  only  way  to  do  that 
is  to  take  what  purports  to  be  the  Constitution  of  1885  and  to 
submit  or  refer  to  these  various  committees  these  things  which 
purport  to  be  the  provisions  of  the  Constitution  of  1885,  and  when 
these  respective  committees  examine  and  compare  them  they  will 
be  able  to  notify  and  inform  this  Convention  as  to  whether  or  not 
these  "various  parts  are  contained  within  the  document  and  by  no 
other  way  can  this  information  be  secured  unless  this  body  itself 
shall  go  to  work  and  make  the  comparison. 

Mr.  Davies:  The  two  motions  which  have  passed  this  Con- 
vention answer  the  purpose  for  which  it  was  passed;  to  give  us 
further  time  until  tomorrow  to  consider  all  this,  and  it  is  well; 
but  why  now  go  to  work  and  undo  all  we  have  done;  why  undo  it 
until  we  do  know,  for  we  have  until  tomorrow  to  consider  this  very 
matter;  if  we  find  our  work  today  is  not  right  it  will  not  then  be 
too  late  to  change  and  ask  for  a  reconsideration  of  this  whole  matter. 
We  as  a  convention  are  to  re-consider  and  examine  this  Consti- 
tution with  a  view  to  meet  the  requirements  of  the  Enabling  Act ; 
how?  We  have  appointed  the  committees,  and  given  this  com- 
mittee a  certain  portion,  and  that  a  certain  portion  to  look  over 
and  report,  and  then  we  have  the  Convention  as  a  Commi; 
the  whole,  if  you  please,  who  can  consider  every  line  that  comes 
from  every  committee.  The  mere  fact  that  a  committee  makes  a 
report  does  not  make  the  Constitution — does  not  take  from  this 
Convention  one  iota  of  power  or  authority.  I  see  no  reason  there- 
fore, why  we  should  not  sustain  this  second  motion,  and  undo  all 
we  have  done.  Let  us  go  on  with  whatever  business  is  before  us, 


84  SOUTH  DAKOTA  DEBATES  1889 

and  if  necessary  tomorrow  if  this  is  to  be  the  understanding,  then 
re-consideration  will  be  in  time. 

Mr.  Corson:  My  motion  was  simply  a  motion  to  reconsider 
and  postpone  that  until  tomorrow,  so  that  if  we  find  we  are  pro- 
ceeding regularly,  it  can  be  withdrawn  and  voted  down;  it  delays 
nothing;  there  is  no  reason  why  the  motion  to  reconsider  should 
not  stand  until  tomorrow ;  I  think  we  had  better  make  it  today  and 
let  them  go  over  together. 

Mr.  Willis:  Give  us  time  to  consider  whether  or  not  we  want 
this  motion  to  reconsider,  before  us  or  not ;  let  it  remain  as  it  is. 

The  President:  The  motion  to  reconsider  the  resolution  by 
which  the  Constitution  was  ordered  to  be  read  section  by  section 
and  referred  to  proper  committees,  that  the  consideration  of  that 
motion  to  reconsider  may  be  postponed  until  tomorrow  at  two 
o'clock,  until  the  time  of  the  special  order,  if  there  is  no  objection 
that  will  be  the  order  of  the  Convention;  the  Chair  hears  no  objec- 
tion; it  is  postponed  until  tomorrow  at  two  o'clock. 

Mr.  Humphrey:  I  have  a  resolution  I  wish  to  offer,  and  a 
motion.  I  move  that  a  committee  of  three  be  appointed  to  care- 
fully proof  read  and  compare  the  copy  of  the  Constitution  as  found 
in  Long's  Legislative  Hand  Book,  with  the  original  copy  now  in 
the  hands  of  the  President  of  this  Convention  and  report  any  and 
all  errors  or  discrepancies  existing  between  them. 

Which  motion  was  duly  seconded. 

Mr.  Humphrey:  My  object  in  moving  this  covers  a  portion 
of  the  ground,  which  as  I  understood  it,  lead  to  the  adoption  of 
the  motion  yesterday,  that  we  should  read  to  this  Convention  the 
original  copy  of  the  Constitution;  I  had  understood  it  was  the  pur- 
pose of  some  to  have  a  proof  read  copy  furnished  every  member 
of  this  Convention,  of  the  Constitution  a  corrected  copy, —  so  that 
whether  it  was  referred  by  sections,  or  whether  it  was  not  referred, 
whenever  a  committee  reported  every  member  of  this  Convention 
would  have  in  his  possession  a  verified  copy  of  the  original  docu- 
ment with  which  he  could  compare  every  report  and  every  alter- 
ation proposed,  and  settle  in  his  own  mind  and  judgment  whether 
it  comes  within  the  provisions  of  the  Omnibus  Bill.  That  we  have 
no  right  to  make  any  alterations  whatever  except  as  required  by 
that  bill,  I  believe  is  the  judgment  of  every  member  of  this  Conven- 
tion. It  is  for  the  purpose  of  placing  in  the  hands  of  every  member 


TECHNICAL  ERRORS  CORRECTED  85 

of  this  Convention,  the  errata  showing  any  changes  or  alterations 
that  may  exist ;  then  if  they  are  few  they  can  be  made  with  the  pen, 
but  if  many,  it  mav  be  proper  for  the  Convention  to  provide  a 
re-print  of  the  Constitution  proof  read  and  verified,  and  place  in  the 
hands  of  the  Convention. 

The  motion  as  made  by  the  gentleman  from  Faulk  prevailed. 

The  President:  The  committee  provided  for  in  the  last  mo- 
tion will  consist  of  Humphrey  of  Faulk,  Mr.  Dickinson  and  Mr. 
Zitka, 

Mr.  Caldwell:  In  order  at  least  to  have  the  matter  suggested 
to  the  members  of  this  Convention,  I  would  make  this  inquiry, 
whether  or  not  in  this  proof  reading, — suppose  that  a  manifest 
error  should  be  observed  in  the  official  engrossed  copy, — we  will 
say  an  error  in  grammar,  an  error  in  punctuation,  or  an  error  in 
orthography,  and  say  further  that  the  aforesaid  errors  should  have 
been  corrected  in  this  Long's  Legislative  Hand  Book,  is  this  Com- 
mittee understood  to  be  required  to  report  that  the  correction  be 
changed  back  to  the  error  in  the  enrolled  copy  ?  And  in  that  con- 
nection, while  I  am  not  speaking  to  any  motion,  I  would  at  the 
same  time,  like  to  call  the  attention  of  the  Convention  to  some 
matters  pertinent  to  the  suggestion  which  I  have  made ;  it  is  that 
unless  this  engrossed  copy  be  a  much  better  document  clerically 
than  documents  of  such  character  usually  are,  it  is  unavoidable 
that  there  shall  have  been  many  errors  crept  into  it.  There  is 
one  section,  in  which  the  change  of  a  single  letter  in  a  single. word 
did  in  my  judgment  precipitate  a  greater  amount  of  argument  with 
regard  to  the  provisions  of  this  Constitution  during  the  campaign 
of  last  May  than  was  precipitated  by  any  other  consideration ;  that 
is  with  regard  to  bribery,  and  its  punishment.  There  is  the  word 
in  the  printed  form  in  almost  all  the  copies  of  the  Constitution, — 
"for"  should  have  been  "of"  ;  the  language  is  as  I  recall  it,  "The  of- 
fense for  bribery  or  corruption", — whether  or  not  the  error  exists 
in  the  official  copy  I  do  not  know,  but  it  would  seem  to  me  and  I 
would  state  it  as  my  private  judgment  that  it  is  within  the  purview 
of  this  Convention  to  make  all  such  changes  as  that,  which  may 
be  discovered  in  that  enrolled  copy,  and  I  would  therefore  move 
that  this  Committee  just  appointed,  shall  be  requested  to  report 
to  this  Convention  precisely  what  discrepancy  there  may  be  between 
the  copy  of  the  Constitution  as  contained  in  Long's  Legislative 


86  SOUTH  DAKOTA  DEBATES  1889 

Hand  Book  and  the  copy  which  is  to  be  regarded  as  the  official 
enrolled  copy,  in  order  that  when  the  action  of  this  Convention 
shall  have  been  enrolled  and  engrossed,  that  no  error  which  may 
have  existed  in  the  original  enrolled  copy  may  find  its  way  into  our 
work.  It  seems  to  me  that  changes  of  that  character,  while  this 
Convention  is  not  permitted  to  make  amendments  of  a  general 
character, 'still  it  seems  to  me  that  it  is  within  the  powers  of  this 
Convention  to  change  those  manifest  errors  which  may  exist  in 
the  enrolled  copy,  even  in  those  articles  which  cannot  be  amended 
by  this  body .  I  believe  that  to  be  the  case  for  the  reason,  that  this 
Convention  is  required  to  prepare  a  constitution  and  is  authorized 
to  make  such  changes  therein  as  are  necessary  in  order  that  the 
result  of  this  work  shall  comply  with  the  requirements  of  the  En- 
abling Act.  The  requirements  of  the  Enabling  Act  most  certainly 
are,  that  there  shall  be  formed  a  document  as  free  from  these 
clerical  errors  as  possible.  Of  course  all  the  legal  evidence  there 
is  of  the  Constitution  of  1885,  is  the  engrossed  copy,  and  all  this 
Committee  are  requested  to  do  is  to  notify  this  body  of  the  dis- 
crepancy between  the  enrolled  copy  and  this  copy  here,  and  the 
matter  will  be  brought  officially  to  the  attention  of  this  body ,  and 
I  will  move  that  the  Committee  be  requested  to  report  every  dis- 
crepancy of  any  sort,  even  in  the  matter  of  orthography, — even  in 
the  spelling  of  names  of  counties  to  be  reported  to  this  Convention. 

Mr.  Humphrey:  I  will  request  the  gentleman  to  read  the 
motion  I  made;  it  covers  that  ground. 

Mr.  Willis:  I  suggest  that  the  gentleman  from  Minnehaha 
get  credit  for  his  speech  all  the  same. 

On  motion  of  Mr.  Fellows,  the  Convention  stood  adjourned 
until  tomorrow,  July  11,  1889,  at  two  o'clock,  P.  M. 


Two  o'clock,  P.  M. 


EIGHTH  DAY. 

Sioux  Falls,  Dakota,  July    11,   1889. 


The  Chaplain:  Our  Father  who  art  in  Heaven,  Hallowed  be 
Thy  name;  wilt  Thou  help  us  as  we  come  before  Thee,  the  Creator 
and  Preserver  of  us  all,  and  ask  that  Thou  wilt  be  with  us  this  day; 
that  we  may  be  wise  and  discreet  and  that  every  act  of  ours  may 
advance  those  things  that  may  be  best  for  our  interests  and  for 
the  interests  of  those  that  have  sent  us  here.  May  we  at  last 
receive  from  Thee,  that  welcome,  "Well  done  thou  good  and 
faithful  servants,  enter  thou  into  the  joy  of  thy  Lord."  In  Je- 
sus' name  we  ask  it. 

AMEN. 

The  President :  There  were  two  special  orders  made  y  esterday , 
but  unless  otherwise  directed  by  the  Convention,  I  will  complete 
the  regular  calls  before  announcing  the  special  order. 

Mr.  Jolley :  We  do  not  seem  to  have  any  copies  of  the  Journal 
of  yesterday  on  our  desks. 

Mr.  Price:  I  move  the  reading  of  the  Journal  be  dispensed 
with. 

Which  motion  prevailed. 

Communications  and  presentations  of  petitions. 

Unfinished  business  of -the  previous  day. 

Reports  from  Standing  Committees. 

Consideration  of  reports  from  Standing  Committees. 

Mr.  Humphrey:  Your  Committee  on  Education  and  School 
Lands  beg  leave  to  submit  a  partial  report;  in  explanation  of  it 
I  would  say  that  it  is  in  the  nature  of  a  memorial  to  the  President  of 
the  United  States  with  relation  to  the  preservation  of  the  school 
lands;  especially  those  that  were  particularly  brought  to  our  at- 
tention by  the  resolution  introduced  by  Mr.  McGillicuddy ;  it  is 
as  follows: 


88  SOUTH  DAKOTA  DEBATES  1889 

To  THE  PRESIDENT  OF  THE  UNITED  STATES: 

Your  memorialists,  the  members  of  the  Constitutional  Con- 
vention, for  the  State  of  South  Dakota,  now  in  convention  as- 
sembled at  Sioux  Falls,  in  said  state  respectfully  represented: 

That  several  of  the  most  valuable  sections  of  lands  reserved 
for  the  use  of  the  State  for  school  purposes,  which  lie  in  agricultural 
districts,  and  some  of  which  are  contiguous  to  considerable  towns 
and  cities  are  sought  to  be  improperly  appropriated  under  pretense 
or  claim  that  they  are  mineral  or  coal  lands,  and  therefore  subject 
to  appropriation  and  entry  under  the  mineral  and  coal  land  laws 
of  the  United  States.  Successful  efforts  in  this  behalf  will  cause 
great  loss  to  the  school  fund  of  the  State. 

Proceedings  by  the  claimants  to  such  lands  are  necessarily 
EX  PARTE,  and  at  present  no  authority  exists  in  the  State,  or  any 
of  its  agents  to  oppose  these  claims. 

Your  memorialists  are  advised  that  applications  for  patents 
have  been,  or  are  about  being  made  to  the  land  department  of  the 
United  States  for  such  lands  based  upon  their  alleged  mineral 
character.  We  know  of  no  proceeding  by  any  authorized  agent 
of  the  people  of  South  Dakota  by  which  the  applications  for  pat- 
ent can  be  as  yet  successfully  resisted. 

The  people  have  no  standing  in  the  Department  for  such 
purpose.  As  soon  as  the  State  shall  be  admitted  and  its  agents 
qualified,  South  Dakota  will  be  in  condition  to  resist  their  claims 
successfully,  or  to  protect  the  rights  of  the  state  whatever  they 
may  be  relating  thereto. 

Therefore,  your  memorialists  respectfully  but  earnestly  pray 
the  President  of  the  United  States  to  direct  that  all  proceedings 
relating  to  the  entry  of  or  issuance  of  patent  to  alleged  mineral  or 
coal  lands  situated  within  the  agricultural  districts  of  South  Dakota 
be  postponed  and  stayed  until  the  State  is  by  proclamation  of  the 
President  a^elared  admitted  into  the  Union  of  States  and  until 
the  Legislature  of  said  State  shall  have  the  opportunity  to  appoint 
the  requisite  agents  therefor  and  provide  by  law  for  contesting 
the  right  to  make  such  entries  and  obtain  from  the  government 
patents  to  such  lands.  H.  A.  HUMPHREY, 

Acting  Chairman  of  Committee  on  School  Lands. 

Mr.  Humphrey:  I  would  like  to  call  the  attention  of  the  Con- 
vention to  the  partial  report  made  by  the  Committee  on  School 
Lands;  I  am  under  the  impression  that  it  may  be  a  matter  that  we 
desire  to  hear  read. 

Clerk:  Reads  Memorial  to  the  President  of  the  United  States 
as  offered  by  Committee  on  School  Lands. 


PROTECTION  OF  SCHOOL  LANDS  89 

Mr.  Price:  It  seems  to  me  proper  that  before  this  Convention 
takes  action  upon  so  important  a  matter,  that  it  ought  to  be  dis- 
cussed, and  we  ought  to  thoroughly  understand  it.  The  object 
of  that  resolution  is  as  I  understand  it,  to  protect  sections  of  land 
for  school  purposes  which  are  being  taken  under  the  mineral  and 
other  laws.  It  is  suggested  to  my  mind,  Mr.  President,  that  it 
would  place  this  Convention  in  a  very  ridiculous  position  before 
the  government  of  the  United  States,  if  that  resolution  was  allowed 
to  go  to  its  President ;  why  ?  Simply  because  there  are  established 
laws  relating  to  public  lands,  and  they  stand  upon  the  statute 
books  of  the  country,  and  the  President  of  the  United  States,  nor 
no  other  power,  in  my  judgment,  Sir,  has  a  right  to  abrogate  those 
laws.  William  Andrew  Jackson  Sparks,  if  you  please,  a  distinguished 
friend  of  Dakota's  interests  (?)  tried  that  once,  and  it  was  held  by 
the  courts  and  everything  else,  that  he  had  no  right  to  suspend 
the  laws  of  this  country.  I  am  constrained  to  repeat  that  it  would 
place  us  in  a  very  ridiculous  position  before  our  government. 

Mr.  Humphrey:  It  was  my  purpose  to  make  an  explanation 
concerning  this  matter;  it  is  this;  there  is  no  purpose  as  indicated 
in  the  memorial  that  we  propose  either  to  petition  for,  or  urge  the 
setting  aside  of  the  Land  Laws  of  the  United  States.  It  is  a  matter  of 
common  knowledge,  and  especially  so  throughout  Dakota  that  there 
is  no  system  of  laws  within  the  United  States, — laws  that  have  been 
in  the  books  for  years  and  yet  in  the  application  of  which  we  are 
so  much  at  sea  as  we  are  with  regard  to  the  land  laws ;  the  whole 
system  of  rulings  and  decisions  is  a  matter  of  such  complexity  that 
it  is  impossible  to  determine  anything  definite  about  them.  The 
facts  of  the  case  are,  pertaining  to  this,  that  it  is  understood  that 
there  are  parties  endeavoring  to  secure  patents  of  these  lands  and 
are  doing  it  without  sufficiently  establishing  their  just  title  and 
right  to  the  same ;  the  object  of  this  resolution  is  to  stop  the  issuing 
of  patents  prior  to  the  parties  having  fully  established  their  rights 
and  at  the  same  time  aid  in  the  protection  of  our  school  lands  and 
preserve  them  from  being  frittered  away  and  being  fraudulently 
deprived  of  them.  It  is  without  the  intention  of  setting  aside,  or 
urging  the  President  to  set  aside  any  law.  It  is  understood  that 
parties  who  are  anxious  to  accomplish  the  patents  to  these  lands 
are  pressing  the  matter,  and  are  personally  pressing  it  at  Washing- 
ton; I  have  no  idea  that  they  will  hurry  the  officers  there  any,  but 


90  SOUTH  DAKOTA  DEBATES  1889 

still,  it  is  not  impossible;  and  such  things  have  been  done.  To 
prevent  the  possibility  of  their  hastening  action  by  providing  that 
they  be  taken  out  of  their  order  and  acted  upon  before  they  all 
can  be  heard  from, — that  is  the  purpose  and  object  of  the  memor- 
ial, and  that  is  all. 

Mr.  Wood:  There  are  some  things  in  that  Memorial,  which 
I  think  it  would  be  beyond  question,  going  too  far,  for  us  to  adopt. 
In  the  first  place,  the  President  has  not  really  anything  to  do  with 
the  matter.  These  laws  are  for  him  to  execute.  It  would  be  like 
a  criminal  judge  suspending  sentence  after  a  verdict  of  guilty  had 
been  returned.  There  is  a  provision  in  the  Federal  Statutes  for 
the  protection  of  all  parties  in  interest  in  this  matter;  the  County 
Superintendents,  if  my  recollection  serves  me  right,  are  obligated 
by  their  official  duties  to  see  that  no  undue  advantage  is  taken  or 
any  trespass  committed  upon  the  school  lands,  that  is,  lands  that 
will  be  school  lands,  if  we  ever  become  a  state.  The  laws  are  in 
force  as  the  gentleman  from  Hyde  has  stated ;  under  these  laws  the 
parties  are  undoubtedly  proceeding,  and  we  are  asking  the  President 
of  the  United  States  to  suspend  such  action  as  is  being  taken  at 
present  looking  towards  securing  patent  of  this  land.  I  think  that 
that  would  be  working  very  great  hardship  to  those  who  are  labor- 
ing in  good  faith  to  get  title  to  coal  lands  and  mineral  lands.  I  do 
not  believe  you  should  memorialize  the  President  to  do  anything 
of  this  character.  If  there  are  known  cases  in  which  frauds  are 
being  perpetrated,  let  these  committees  name  those  cases, — name 
those  individuals  who  are  liable  to  make  an  attempt  to  defraud 
the  government,  but  do  not  strike  at  everybody;  because  one  man 
is  endeavoring  to  pick  up  a  quarter  section  of  land  as  coal  land^it 
is  no  reason  for  our  memorializing  the  President  to  suspend  patents 
and  thus  work  great  damage  to  our  fellow  citizens  who  are  not 
endeavoring  to  defraud  the  government.  I  have  a  desire  to  pro- 
tect the  school  lands,  but  we  might  make  a  greater  mistake  than 
Brother  Sparks  made  in  his  day.  It  was  acts  of  this  character 
that  worked  all  the  hardship  that  was  wrought  upon  the  people  of 
this  State ;  the  attempt  to  protect  some  counties  against  threatened 
fraud  and  bringing  everybody  else  within  the  operation  of  the  rule. 
This  memorial  covers  too  much;  I  hope  the  Convention  will  not 
pass  it.  As  I  said  before,  there  must  be  in  the  mind  of  some  mem- 
ber or  members  of  this  Convention  specific  cases.  Now,  if  there 


PROTECTING  SCHOOL  LANDS  91 

are  such,  name  those  cases ;  if  I  had  any  such  cases  in  mind,  I  would 
name  them;  if  I  had  any  evidence  of  the  fact  that  an  attempt  was 
about  to  be  made  to  fraudulently  obtain  any  of  the  school  lands  in 
South  Dakota  I  would  describe  the  land  if  I  knew  the  numbers, 
and  if  I  did  not,  I  would  endeavor  to  ascertain  the  numbers,  and 
would  name  the  parties  or  corporations  that  were  endeavoring  to 
defraud  the  government ;  then  I  do  not  strike  at  the  guilty  and 
innocent  alike;  then  I  do  not  impede  progress  which  we  should 
not  in  any  manner  attempt  to  impede.  Where  is  the  case  that 
suggested  the  inserting  of  this  memorial,  let  that  case  be  named; 
let  the  parties  in  connection  with  it  be  named;  it  might  strike  at 
some  of  the  delegates  for  all  I  know ;  I  am  sure  however,  not  among 
the  Democrats  of  the  Convention.  (Laughter.) 

Mr.  Sherwood:  It  seems  to  me  that  this  resolution  is  a  proper 
one ;  the  matter  of  the  school  lands  is  of  too  much  importance  at 
this  time  to  be  trifled  with;  it  is  I  think,  a  question  of  as  great  im- 
portance as  will  come  before  this  Convention.  It  seems  to  me  the 
gentlemen  upon  the  other  side  have  misapprehended  the  idea  of 
the  resolution.  I  do  not  think  this  is  a  matter  of  overriding  the 
laws ;  I  think  it  is  a  matter  of  overloading  the  courts ;  that  parties 
interested  in  this  action  upon  the  one  side  may  have  a  chance  to 
be  heard.  Today  we  have  no  reputation  at  all  anywhere ;  we  stand 
in  the  position  of  law,  of  being  represented  by  nobody;  we  cannot 
appear  in  these  courts  and  plead  for  these  school  sections  which 
are  our  heritage.  This  is  a  matter  between  the  United  States  and 
individuals;  the  individuals  take  the  property  and  appropriate  it 
to  their  own  use;  nobody  appears  on  the  part  of  the  United  States; 
whereas,  when  we  become  a  state,  this  land  will  vest  in  the  State, 
and  the  State  will  then  have  the  right  to  appear  before  the  court 
and  protect  its  interests.  Today  it  has  no  title  to  this  land  at  all ; 
it  cannot  appear  in  the  courts  or  proceedings  against  the  United 
States,  or  against  a  party ;  therefore,  I  say  in  order  to  give  both 
sides  a  chance  to  be  heard,  and  give  the  State,  or  the  people  of 
the  State,  who  are  interested  in  these  lands,  and  whose  heritage 
these  lands  shall  be,  a  right  to  be  heard,  this  memorial  should  be 
forwarded  to  the  President.  It  will  work  no  great  hardship  to 
now  suspend  all  proceedings  of  this  character  until  the  people  of 
the  State  of  South  Dakota  shall  be  represented  in  their  capacity 


92  SOUTH  DAKOTA  DEBATES  1889 

as  a  state,  I  think  that  is  fair,  just  and  legal.  I  support  the  prop- 
osition. 

Mr.  Dickinson:  I  raise  the  question  of  order  as  whether 
memorializing  the  President  or  officers  of  the  government  as  School 
Lands,  or  Artesian  Basin  Survey,  or  anything  of  that  sort  is  within 
the  scope  of  the  work  of  this  Constitutional  Convention?  It  seems 
to  me  we  are  here  to  modify  a  constitution  as  per  the  Omnibus  Bill 
and  not  for  these  questions  or  resolutions. 

The  President :  I  apprehend  a  memorial  sent  in  in  the  nature 
of  a  petition,  may  with  perfect  propriety  be  sent  to  the  President 
of  the  United  States  or  any  other  department  of  government, 
whether  it  be  the  act  of  a  town  meeting,  or  body  of  clergymen,  or 
anybody  else. 

Mr.  Huntley:  It  is  true  that  certain  sections  of  our  school 
lands  are  being  sought  out  by  parties,  with  a  view  of  securing  a 
portion  of  them,  under  the  mineral  laws,  whether  there  is  any  legal 
ground  or  not ;  they  are  seeking  to  divert  them  from  their  proper 
channel.  We  will  say  this  section  here,  that  Sioux  Falls 
would  be  near,  another  at  Huron,  and  some  others  are  mentioned 
that  there  are  now  parties  at  work  endeavoring  to  secure  portions 
of  these  sections  as  mineral  lands  because  of  their  great  value.  This 
is  a  matter  that  concerns  this  Convention  and  the  rest  of  the  State; 
that  if  such  attempts  are  in  progress  that  we  ought  to  bring  about 
such  delay  as  will  give  the  State  an  opportunity  for  defense.  That 
is  about  what  this  Memorial  can  do ;  I  hope  it  will  pass  and  pass 
unanimously. 

M  r.  Davies:  If  there  is  a  serious  grievance  it  ought  to  be  met, 
but  if  we  do  it,  let  us  do  it  properly ;  if  we  are  not  sure  the  President 
of  the  United  States  is  the  proper  person  to  memorialize,  let  us  seek 
the  Department  of  the  Interior ;  even  the  Department  of  Agriculture 
would  be  nearer  than  the  President.  We  might  send  to  any  depart- 
ment, and  in  due  course  of  time  it  would  get  to  the  right  place  al- 
though not  properly  directed.  But,  Sir,  if  it  takes  its  usual  course, 
we  will  be  dead  long  before  it  ever  reaches  its  destination.  It  will 
reach  the  President  who  will  refer  it  to  the  Committee,  who  will 
pigeon-hole  it ;  or  send  it  on  its  rounds  through  the  departments. 

Again,  it  is  too  general;  it  is  the  same  objection  that  we  have 
to  the  general  orders  that  they  are  something  either  good,  bad  or 
indifferent.  There  are  doubtless  men,  today  that  have  developed 


PROTECTING  SCHOOL  LANDS  93 

mineral  claims,  and  are  today  engaged  in  doing  so,  and  those  who 
are,  in  good  faith,  ought  not  to  be  hindered  in  order  to  find  out 
who  are  not  acting  in  good  faith.  I  presume  this  affects  the  section 
of  the  Black  Hills  more  than  any  other;  I  would  be  pleased  to  know 
something  in  reference  to  the  amount  of  this  grievance.  In  this 
section  of  the  Territory  I  do  not  apprehend  it  is  very  serious.  When 
we  become  a  state,  although  we  have  our  representatives  in  Wash- 
ington, we  cannot  go  there  and  in  two  minutes  turn  everything 
upside  down,  and  get  things  just  as  we  would  like  them;  those  who 
have  been  states  long  before  we  ever  became  a  Territory  have  griev- 
ances today  that  existed  years  and  years.  I  dare  say,  if  we  were 
to  start  today  and  land  in  Washington  tomorrow  morning  and  find 
Congress  in  session  that  then  we  could  not  have  our  grievances 
settled  by  next  October,  when  we  hope  to  be  a  state.  Let  us  con- 
sider whether  it  is  practical ;  let  us  consider  whether  it  is  feasible ; 
let  us  consider  whether  it  is  possible  before  we  go  to  the  President 
with  such  a  memorial. 

Mr.  Wood:  The  Rapid  City  settlement  was  in  advance  of 
the  public  surveys,  and  one.  section  was  entered  under  what  was 
known  as  the  Townsite  Law,  they  filed  upon  onehalf  of  section  thirty- 
six,  Township  two,  north  of  Range  seven,  east  of  the  Black  Hills 
Meridian;  this  is  now  within  the  corporate  limits  of  Rapid  City. 
Last  year,  or  a  year  ago,  coal  was  discovered  in  that  vicinity,  and 
filings  were  made  by  two  individuals  on  this  land;  two  quarter 
sections.  There  has  been  expended  cash,  at  a  cost  of  about  six 
thousand  dollars  as  I  understand  it,  arranging  their  diamond  drill 
and  running  the  same  for  the  purpose  of  going  down  to  discover 
coal.  When  I  came  away,  they  had  reached  a  depth  of  something 
over  six  hundred  feet  and  no  coal  had  been  discovered;  it  was  re- 
ported that  they  had  as  yet  discovered  nothing.  Whether  this 
is  an  attempt  at  defrauding  the  State  out  of  its  right  'and  title  to 
this  land  is  more  than  I  can  tell.  Sure  it  is  the  efforts  put  forward 
by  these  parties  were  fair,  and  didn't  disclose  to  my  mind  any  fraud 
or  idea,  or  intention  to  take  any  undue  advantage  nor  to  procure 
title  to  property  that  they  would  not  be  entitled  to  receive  under 
the  law.  If  there  is  any  facts  connected  with  the  entries  that  will 
suggest  to  anyone  that  they  are  to  get  the  title  unfairly,  it  has  yet 
to  come  to  my  knowledge. 

I  have  heard  of  another  case,  I   thinkj  in^Turner  County ;  it 


94  SOUTH  DAKOTA  DEBATES  1889 

is  this  side  of  the  river;  but  I  think  no  application  for  title  has 
been  made.  It  seems  that  Section  36,  Township  ninety-eight,  Range 
fifty-one,  and  Section  sixteen,  Township  ninety-eight,  Range  fifty, 
similar  efforts  are  being  made.  I  am  not  acquainted  with  the  facts 
of  these  cases ;  I  have  suggested  all  that  I  know  concerning  the 
lands.  I  will  state  the  land  that  I  have  been  informing  the  Con- 
vention concerning  is  now  very  valuable ;  worth  from  three  to 
five  hundred  dollars  an  acre. 

Mr.  Huntley:  I  think  that  those  gentlemen  who  are  thus 
honestly  pressing  their  claims  for  these  mineral  lands  should  not 
suffer  great  hardship  or  further  delay  in  receiving  their  patents. 
I  can  remember  that  good  Brother  Sparks  (who  has  been  alluded 
to)  thought  there  were  so  many  frauds  out  in  Dakota,  issued  an 
order  that  all  patents  should  be  delayed  five  years.  I  know  that 
my  patent  was  delayed  four  years ;  I  didn't  complain  about  it ;  may- 
be some  people  suffered  hardship  under  that  rule.  We  do  not  wish 
to  deprive  anybody  of  their  rights;  we  do  not  propose  it  in  this 
Memorial;  simply  that  delay  be  had  until  the  matter  may  be  in- 
quired into.  I  waited  four  years;  I. waited  patiently;  I  got  my 
patent  all  right.  Perhaps  I  will  say  that  I  did  think  Mr.  Sparks 
was  a  little  too  exacting.  I  trust  that  this  Memorial,  if  sent,  will 
not  keep  anyone  waiting  four  years;  I  simply  ask  it  to  delay  this 
matter  until  we  become  a  state.  And  certainly  that  is  not  an  un- 
just, nor  is  it  an  extraordinary  request;  and  if  there  are  those  in 
the  Black  Hills  who  have  claims  they  are  honestly  presenting,  and 
who,  under  the  laws,  are  entitled  to  patents  to  portions  of  those 
coal  lands,  they  will  get  their  rights  in  due  time.  I  believe  this 
Convention  will  be  doing  its  duty  by  the  people  who  sent  us  here, 
to  do  all  that  lies  in  our  power  to  prevent  any  of  these  frauds,  that 
have  been  attempted,  or  are  being  attempted. 

Mr.  Hole:  Mr.  President;  there  are  some  features  of  this 
Memorial  that  certainly  are  correct.  There  are  .some  features  that 
I  want  to  support  but  I  do  not  want  to  support  it  as  submitted. 
It  strikes  me  that  if  this  should  be  submitted  at  all,  it  should  be 
submitted  to  the  head  of  the  department  to  which  it  belongs.  That 
is  the  only  way  to  have  any  document  of  this  kind  acted  upon  in 
time  to  be  of  any  service.  Again  it  seems  to  me  that  this  Memorial 
might  be  changed  so  that  it  can  in  no  case  work  hardship.  For 
instance  the  Department  of  the  Interior  is  provided  with  attorneys 


PROTECTING  SCHOOL  LANDS  95 

to  protect  just  such  cases.  Let  the  Memorial  ask  that  the  attorneys 
provided  by  the  government  protect  our  rights;  be  called  upon  in 
these  cases.  Let  the  cases  be  specified  and  if  necessary  let  the 
school  lands  of  Dakota  be  included  so  that  whenever  patents  are 
asked  for  upon  lands  that  may  possibly  become  school  lands  in 
Dakota  that  that  matter  first  be  referred  to  the  proper  department 
to  protect  our  interests.  Then  we  do  not  stultify  ourselves  with  the 
administration.  We  simply,  by  allowing  this  to  go  on,  work  justice 
to  all  and  hardship  to  none  and  we  protect  the  school  lands  at  the 
same  time.  I  think  that  should  be  the  object  of  this  Memorial. 
In  view  of  this,  and  wishing  to  support  it  in  the  main,  I  would  move, 
gentlemen,  that  this  be  referred  back  to  the  Committee  for  re-con- 
sideration and  amendment  so  as  to  meet  that  desired  end. 

Mr.  Cooper:  I  think  the  Memorial  is  entirely  unnecessary  for 
this  reason:  I  do  not  believe  for  a  moment  that  the  school  lands 
can  be  fraudulently  appropriated  by  any  man  in  this  Territory ; 
certain  steps  have  got  to  be  taken  by  any  person  or  class  of  persons 
who  desire  to  secure  title  to  school  lands  under  the  mineral  laws. 
That  is  a  matter  of  record;  it  is  a  matter  that  comes  before  the 
public,  they  have  to  advertise  during  a  certain  time  that  they  will 
offer  proof;  they  have  to  give  their  testimony  under  oath;  and  if 
that  land  is  in  the  vicintiy  of  Huron  or  Sioux  Falls  or  Mitchell,  I 
do  not  believe  that  the  real  estate  men  of  this  country  are  going 
to  sit  around  and  see  them  gobble  up  that  land  unless  it  is  mineral 
land,  and  if  it  is  any  distance  from  these  towns  the  prices  which 
these  men  will  have  to  pay  for  this  land  is  far  more  than  will  be 
required  to  buy  the  land  within  three  or  four  miles  of  the  best 
cities  in  this  State ;  so  I  do  not  believe  that  it  is  necessary  in  the 
first  place  for  the  reason  I  do  not  believe  it  is  possible  under  the 
existing  order  of  things  to  secure  any  of  this  land  fraudulently. 
I  believe  that  when  the  first  attempt  of  that  kind  was  made  that 
a  hundred  protests  would  be  filed  and  then  it  .is  the  duty  of  the 
special  agents  that  are  sent  out  here,  to  protect  the  interests  of 
the  people  and  protect  the  interests  of  the  government.  One  gentle- 
man a  few  moments  ago  said,  "We  will  see  to  it  that  unless  these 
lands  are  mineral  lands  that  they  shall  not  be  appropriated";  while 
the  gentleman  from  Turner  County  (Mr.  Huntley)  says  that  he 
made  no  complaint  when  he  waited  long  weary  years  for  his  patent. 
I  must  congratulate  him  that  he  is  the  only  gentleman  that  I  have 


96  SOUTH  DAKOTA  DEBATES  1889 

met  that  did  not  make  complaint.  I  see  in  this  action  a  reflection 
upon  the  people  of  South  Dakota ;  it  ought  to  be  voted  down. 

Mr.  Young:  As  a  member  of  the  Committee  on  Education 
and  School  Lands  I  wish  to  make  a  word  of  explanation.  In  the 
first  place  there  is  a  difference  under  the  United  States  statutes 
between  mineral  lands  and  coal  lands.  The  process  for  getting 
a  patent  to  coal  lands  is  much  shorter  and  less  tedious  than  getting 
a  patent  to  mineral  lands.  The  memorial  calls  attention  only  to 
certain  valuable  sections  of  land  in  the  mineral  districts  of  the  Ter- 
ritory. The  memorial  calls  attention  only  to  certain  valuable  sec- 
tions of  land  in  certain  agricultural  districts  of  the  Territory,  con- 
tiguous to  towns  and  cities  of  considerable  size.  I  would  suggest 
that  it  does  not  refer  to  any  proceedings  or  applications  for  patents 
on  the  part  of  miners  in  the  Black  Hills  district  at  all.  Let  me  say 
with  regard  to  the  address  of  this  memorial,  that  it  seems  to  me 
such  a  friend  of  Dakota  as  we  have  in  the  President  of  theU  nited 
States  is  pre-eminently  the  man  to  whom  to  send  a  petition  from 
such  a  body  as  the  Constitutional  Convention  of  South  Dakota. 

Mr.  Davies:  I  want  to  explain  myself  in  my  position  on  this 
resolution.  I  want  to  vote  for  it ;  and  the  only  object  I  had  in  view 
was  debate,  and  if  it  was  presented  in  proper  manner  to  Congress 
or  the  proper  department,  I  am  not  opposing  this  measure. 

Mr.  Humphrey:  Just  one  word  with  regard  to  the  amend- 
ment that  is  moved;  we  have  three  departments;  we  have  the 
Executive,  the  Judiciary  and  the  Legislative.  The  President  of 
the  United  States  is  at  the  head  of  that  one  department ;  this  comes 
within  that  department.  We  present  to  him  our  memorial;  he 
will  refer  it  to  the  proper  bureau  or  department  in  his  executive 
department.  This  is  the  direct  way  of  placing  it  before  the  man 
who  must  act  upon  it.  So  much  for  its  reference.  Then  in  regard 
to  one  other  point.  I  wish  to  state  this,  that  there  is  a  misap- 
prehension of  the  intention  of  the  Committee  that  they  are  making 
an  attack  upon  any  location ;  but  it  is  a  well  known  fact  that  there 
has  ever  been  a  disposition  to  take  advantage  and  any  advantage 
that  they  can  of  the  school  lands.  The  action  contemplated  by 
this  memorial,  does  not  hinder  any  man's  rights  under  the  law, 
if  any  man  has  taken  any  steps  within  the  law  to  secure  title  to 
these  lands  this  will  not  prevent  him.  This  is  simply  a  stay  of 
proceedings  until  the  rights  of  Dakota  can  be  secured. 


PROTECTING  SCHOOL  LANDS  97 

Mr.  Caldwell:  As  a  matter  of  information  I  would  like  to  ask 
whether  or  not  in  the  event  of  a  miner  entering  land  which  sub- 
sequently proves  to  be  not  mineral, — does  the  mineral  entry  still 
hold  good  the  claim  of  title? 

A  Voice:     No,  Sir. 

Mr.  Caldwell:  If  it  be  the  case,  if  it  does  not,  it  seems  to  me 
that  the  interests  of  the  State  are  not  jeopardized  as  much  as  might 
first  appear.  Of  course,  if  the  claimants  to  land  shall  be  able  to 
prove  by  testimony,  that  the  land  actually  is  mineral,  they  are 
certainly  entitled  to  the  operation  of  the  mineral  land  laws. of  the 
country.  And  would  be  entitled  to  the  possession  of  the  land,  but 
if  they  do  not  prove  to  be  mineral  lands,  according  to  the  answer 
which  I  have  received,  the  title  to  the  land  reverts  to  the  state, — 
or  will  revert  to  the  government  and  from  the  government  to  the 
State,  so  that  it  does  not  seem  to  me  cause  for  uneasiness  if  efforts 
are  to  be  attended,  or  if  unsuccessful  experiments  are  to  be  prose- 
cuted. It  does  not  jeopardize  or  limit,  the  title  of  the  State  or 
whatever  right  it  may  have  to  the  land. 

Mr.  Humphrey:  I  would  like  to  ask  the  question,  how  can 
the  gentleman  understand  that  it  is  the  intent  of  this  memorial  to 
deprive  a  party  of  the  possession  of  the  land?  It  is  only  intended 
to  limit  the  acquisition  of  the  title;  if  he  gets  the  patent  of  it  after 
a  while,  is  he  greatly  inconvenienced?  We  do  not  propose  to  de- 
prive a  man  of  his  rights  to  the  land,  simply  to  stay  his  procuring 
final  title. 

Mr.  Lee:  I  rise  to  ask  a  favor.  In  order  that  we  may  under- 
stand what  we  are  doing  and  the  character  and  importance  of  this 
resolution,  I  desire  to  hear  the  memorial  read  again. 

(Clerk  reads.) 

The  President:  The  question  before  the  Convention  is  to 
re-commit  this  report  to  the  Committee  on  School  Lands. 

Mr.  Wood:     I  call  for  the  ayes  and  the  nays. 

The  motion  was  lost  by  a  vote  of  28  ayes ;  nays  32. 

Mr.  Humphrey:  I  move  the  previous, — the  adoption  of  the 
memorial. 

Mr.  Sherwood:  I  ask  that  the  roll  be  called  on  the  main 
question. 

Mr.  Wood:  I  desire  to  call  the  ayes  and  noes  on  the  main 
question  for  the  purpose  of  putting  myself  upon  record  as  voting 


98  SOUTH  DAKOTA  DEBATES,  1889. 

no  to  a  petition  asking  the  President  of  the  United  States  to  do 
what  he  under  the  law  has  no  authority  to  perform. 

The  vote  upon  the  previous  question  resulted  as  follows: 

AYES:  Atkinson,  Berdahl,  Boucher,  Buechler,  Caldwell,  Clough 
Cook,  Cooper,  Corson,  Culver,  Davies,  Dickenson,  Downing,  Eddy, 
Edgerton  of  Yankton,  Fellows,  Gifford,  Harris,  Hartley,  Heninger, 
Hole,  Houlton,  Huntley,  Humphrey,  Jolley,  Lee,  Matson,  Mc- 
Cusick,  McGillycuddy,  Murphy,  O'Brien,  Peck,  Ramsey,  Ringsrud. 
Scollard,  Sherwood,  Smith,  Spooner,  Stoddard,  Sterling,  Stroupe, 
Thompson,  Van  Tassel,  Wescott,  Wheeler,  Whitlock,  Williams, 
Williamson,  Wood  of  Spink,  Zitka  and  Mr.  President.  (56). 

NOES:  Couchman,  Diefendorf,  Fowles  Goddard,  Kellam, 
McFarland,  Price  and  Wood  of  Pennington.  (8). 

The  vote  upon  the  adoption  of  the  memorial  resulted  as 
follows: 

AYES:  Atkinson,  Berdahl,  Buechler,  Clough,  Cook,  Corson, 
Culver,  Davies,  Dickinson,  Downing,  Eddy,  Edgerton  of  Yankton, 
Gifford,  Houlton,  Huntley,  Humphrey,  Lee,  Matson,  McGillycuddy, 
O'Brien,  Peck,  Ringsrud,  Sherwood,  Smith,  Spooner,  Stoddard, 
Sterling,  Stroupe,  Thompson,  Wescott,  Wheeler,  Willis,  Williams, 
Williamson,  Wood  of  Spink,  and  Mr.  President.  (36). 

NOES:  Boucher,  Caldwell,  Cooper,  Couchman,  Diefendorf, 
Fellows,  Fowles,  Goddard,  Harris,  Hartley,  Heninger,  Hole,  Jolley, 
Kellam,  McCusick,  McFarland,  Murphy,  Price  Ramsey,  Scollard, 
Van  Tassel,  Whitlock,  Wood  of  Pennington,  Zitka.  (24). 

So  the  memorial  was  declared  passed. 

The  President:  The  special  orders  appointed  by  the  Conven- 
tion, yesterday,  will  now  be  considered  unless  otherwise  ordered 
by  the  Convention ;  there  are  two  special  orders  for  this  hour. 

Mr.  Corson:  With  the  consent  of  the  second,  I  will  withdraw 
my  motion  to  reconsider. 

The  President :  There  being  no  objection  it  will  be  withdrawn ; 
the  Chair  hears  no  objection,  the  motion  is  withdrawn. 

Mr.  Williams:  If  it  is  now  in  order,  I  have  a  motion  which  I 
would  like  to  present  to  the  Convention  and  have  it  read  by  the 
clerk,  and  upon  such  reading  I  will  move  the  adoption  of  the 
motion. 

Mr.  Joiiey:  We  are  under  a  special  order  of  business;  unless 
the  Convention  shall  order  otherwise,  it  cannot  be  heard,  if  that 
refers  to  that  special  order  of  business  it  may  be,  otherwise  it  can- 
not be  received, — except  by  unanimous  consent. 

Mr.  Williams:     I  withdraw  it  at  this  time. 


FURTHER  RF. FKKKXCES  TO  COMMITTEES  99 

The  President:  The  Clerk  will  read, — I  have  forgotten  what 
we  reached  yesterday. 

A  Voice:     Article  22. 

Mr.  Humphrey:  I  would  ask  consent  of  the  Convention  for 
an  opportunity  for  the  introduction  of  a  motion  that  will  dispose 
of  this  matter  without  the  re-consideration  of  the  proposition 
yesterday ;  I  would  like  to  read  it  and  would  like  to  ask  unanimous 
consent  for  its  introduction. 

A  Voice:     I  object. 

The  President:     The  Clerk  will  proceed. 

Article  24,  Prohibition. 

The  President:     What  committee  will  you  have? 

Mr.  Atkinson:  I  move  that  it  be  referred  to  the  Committee 
on  Rights  of  Married  Women. 

The  President:  It  will  be  so  referred  unless  objection  is  made, 
— it  is  so  referred, 

Article  25,  Minority  Representation. 

The  President:  It  will  be  referred  unless  objection  is  made, 
to  the  Committee  on  Amendments  and  Revision  of  the  Constitution. 

Schedule  and  Ordinance, — referred  to  the  Committee  on 
Schedule  and  Ordinance. 

Mr.  Caldwell:  I  would  object  to  this  reference  of  the  article 
on  Minority  Representation. 

The  President:     It  is  too  late ;  it  is  referred. 

Form  of  Ballot, — 

The  President:  Mr.  Zitka,  what  will  you  have  that  referred 
to? 

Voices:     To  the  Committee  on  Election, — Schedule. 

The  President:  It  will  be  referred  to  the  Committee  on 
Schedule  unless  otherwise  ordered  by  the  Convention. 

Mr.  Clough:  I  move  you  that  the  motion  by  which  Article 
24  was  referred  to  the  Committee  on  Rights  of  Married  Women  be 
reconsidered.  Would  not  the  people  of  this  Territory  take  that 
as  an  insult?  I  think  that  when  it  was  so  referred  it  was  thought- 
lessly done. 

Mr.  Atkinson:  I  disclaim  any  intention  of  making  a  joke  of 
this  matter;  I  was  in  earnest;  it  belongs  to  that  Committee,  who 
is  more  interested  in  these  matters  than  married  women? 


100  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Clough:  I  would  add  to  my  motion  that  it  be  referred 
to  the  Committee  on  Schedule.  &t5K 

The  President:  It  is  moved  that  the  reference  of  Article  24 
to  the  Committee  on  Rights  of  Married  Women,  be  re-considered 
by  the  Convention  and  that  it  be  referred  to  the  Committee  on 
Schedule. 

Which  motion  prevailed. 

Mr.  Williams:  I  have  a  motion  here  which  I  would  like  read 
by  the  Clerk  and  then  move  its  adoption  by  the  Convention. 

RESOLVED:  That  a  committee  of  five  be  appointed  by  the 
President  of  this  Convention,  whose  duty  it  shall  be  to  procure  from 
the  custodian,  the  original  Sioux  Falls  Constitution  of  1885,  and 
carefully  compare  the  same  with  the  Omnibus  Bill  and  report  to 
this  Convention  the  changes  therein  authorized  by  the  Omnibus 
Bill  together  with  recommendations. 

Mr.  Williams:     I  move  the  adoption  of  that  resolution. 

Mr.  Caldwell:  I  simply  desire  to  say  that  the  appointment  of 
such  a  committee,  with  such  powers  as  that,  would  practically 
wipe  out  every  committee  that  has  been  appointed ;  it  is  the  busi- 
ness of  each  standing  committee  to  compare  such  parts  of  the  Con- 
stitution as  has  been  referred  to  it,  and  report  to  the  Convention. 

Mr.  Williams:  There  was  quite  a  discussion  here  yesterday 
as  to  what  was  the  proper  method  of  procedure  in  this  Convention, 
in  reference  to  this  Sioux  Falls  Constitution.  It  was  contended 
by  some  that  this  Convention  is  authorized  and  that  it  is  its  duty 
to  submit  an  entire  new  Constitution  if  I  understood  the  remark 
of  the  gentleman  from  Minnehaha  County  I  take  it  this  Convention 
is  not  yet  lawfully  in  possession  of  the  document  before  the  people 
on  the  I4th  day  of  May  nor  that  this  Convention  may  come  into  pos- 
session of  this  document  in  order  to  ascertain  any  further  changes 
ordered  to  be  made  by  the  Omnibus  Bill.  Now  that  these  matters 
may  be  brought  before  the  Convention,  and  then  referred  to  the 
proper  committee  is  the  object  of  the  resolution.  I  find  on  looking 
through  and  reading  a  copy  of  the  Constitution  as  presented  in  this 
pamphlet  there  are  more  than  twenty  changes  authorized  and 
there  are  other  questions,  that  there  is  a  difference  of  opinion. 
That  those  changes  may  be  pointed  out  and  those  doubtful  changes 
may  be  discussed  is  the  purpose  of  this  Committee,  not  to  usurp 
any  power  or  duty  of  the  other  Committees,  the  purpose  of  this 


POWERS  OF  COMMITTEES  101 

Committee  is  only  to  point  out  and  indicate  the  section  and  line 
where  changes  are  authorized;  then  these  sections  or  portions  will 
be  referred  to  the  proper  Committees  which  is  already  appointed 
and  not  take  away  their  power.  It  does  seem  to  me  that  there 
ought  to  be  a  committee  whose  duty  it  would  be  to  designate  in 
a  brief  form  the  changes  that  are  authorized  and  the  powers  that 
are  granted  or  prohibited  so  that  the  special  committee  to  which 
this  subject  of  the  Constitution  is  referred,  may  look  into  that 
matter.  I  have  asked  for  a  committee  of  five  that  each  subject 
might  be  thoroughly  discussed  and  disposed  of  in  that  way. 

Mr.  Price:     I  move  that  the  motion  be  indefinitely  postponed. 

The  motion  coming  to  a  vote  was  by  rising  vote,  of  forty  ayes 
to  eighteen  nayes  declared  indefinitely  postponed. 

Mr.  Williamson:  I  move  that  the  committees  to  which  the 
several  articles  and  sections  of  this  Constitution  have  been  referred, 
report  to  this  Convention  what  changes,  if  any,  must  be  made  in 
such  articles  and  sections  in  order  that  the  same  may  comply  with 
the  provisions  of  the  Omnibus  Bill  or  Enabling  Act. 

Mr.  Davies:  I  would  like  to  ask  the  question  for  infoimation, 
is  not  it  already  supposed  that  each  committee  is  already  author- 
ized to  report  whether  to  make  these  changes  or  not  and  would 
a  report  be  considered  complete  without  reporting  to  the  Committee 
on  Phraseology  all  the  changes  required  by  the  Omnibus  Bill? 
That  is  the  understanding  is  it  not  ? 

Mr.  Williamson:  My  understanding  is,  that  in  this  matter 
this  Convention  has  no  power  to  make  any  changes  whatever  in 
that  Constitution  except  such  as  are  required  by  the  Enabling  Act. 
The  question  came  up  in  the  discussion  yesterday  as  to  what  powers 
was  given  to  these  committees  by  referring  the  several  sections  to 
them.  Leaving  the  committees  without  any  instruction  upon  that 
point  leaves  the  implication  upon  the  records  of  this  Convention 
that  these  committees  have  power  to  make  other  changes  than  such 
as  are  contemplated  in  the  t Enabling  Act.  The  inference  might 
be  drawn  that  this  Convention  assumed  the  power  to  make  any 
other  changes.  Of  course  none  believe  any  such  thing,  but  that 
all  the  changes  that  can  be  made  by  this  Convention,  are  only 
such  changes  as  are  required  by  the  Enabling  Act.  I  cannot  c6n- 
ceive  what  duties  the  several  committees  to  which  these  several 
sections  are  referred  can  have,  except  simply  to  refer  back  to  this 


102  SOUTH  DAKOTA  DEBATES  1889 

Convention  what  changes  are  required  to  be  made,  report  what 
those  changes  are,  how  these  articles  must  be  amended  to  conform 
to  the  requirements  of  the  Enabling  Act.  If  they  were  left  without  • 
any  instruction  whatever,  it  might  lead  to  confusion  and  uncer- 
tainty. I  had  intended  if  this  original  motion  had  been  re-consid- 
ered to  offer  this  amendment  to  the  original  motion.  I  think  now 
we  have  instructed  the  committees  in  this  respect,  that  not  even 
by  implication  do  we  attempt  to  assume  any  power  and  will  amend 
no  article  or  section  except  asjiirected  by  the  Omnibus  Bill.  Simply 
instruct  the  committees  about  what  their  duties  and  powers  are 
in  that  matter. 

Mr.  Humphrey:  I  am  in  favor  of  the  motion ;  of  the  principles 
embodied  in  the  motion,  and  if  the  motion  to  reconsider  the  refer- 
ence of  the  Constitution  had  not  been  withdrawn  I  should  have 
presented  a  similar"  motion  to  this  Convention ;  it  was  the  motion 
that  I  asked  the  consent  to  present ;  it  embodied  the  same  prin- 
ciples as  that  read  to  you  with  the  exception  that  in  its  wording  it 
is  a  little  more  general,  and  that  we  may  choose  between  the  two, 
I  will  move  it  as  a  substitute ;  permit  me  to  read  it. 

Moved  that  the  several  committees  provided  for  by  the  Rules 
of  this  Convention  be  directed  to  proceed  to  the  discharge  of  their 
several  duties,  and  report  to  this  Convention  only  such  changes  and 
amendments  to  the  Constitution  as  in  their  judgment  are  directed 
by,  or  are  necessary  in  order  to  comply  with  the  provisions  of  the 
Enabling  Act,  known  as  the  Omnibus  Bill,  under  the  authority 
of  which  we  are  here  convened,  and  by  the  provisions  of  which  we 
must  be  guided  and  controlled. 

Mr.  Davies:  Another  question,  I  would  ask,  it  is  my  understand- 
ing that  the  report  of  these  committees  comes  before  this  Conven- 
tion and  that  before  that  report  is  disposed  of  at  all,  there  must  be 
a  vote  of  this  Convention,  either  .for  or  against  it?  If  that  is  the 
understanding  of  the  Convention,  quite  a  number  of  members  will 
be  satisfied  on  this  point.  Quite  a  number  seem  to  doubt,  or  to  be 
at  sea  whether  these  reports  are  final,  as  I  understand  it  the  Con- 
vention as  a  body,  will  act  upon  each  report  before  it  is  authentic. 
Am  I  right  in  this? 

Mr.  Williamson:  I  am  perfectly  willing  to  accept  the  substi- 
tute of  the  gentleman  from  Faulk  County. 

Mr.  Caldwell:     I  think  that  there  is  no  gentleman  upon  the 


PmYKkS  OF  Co.MMITTKKS  TO   R  K  \  'I  S  I  •:  103 

floor  who  will  dispute  the  proposition  that  there  can  nothing  go 
into  this  Constitution,  as  the  one  formed  by  this  body,  which  does 
pass  by  a  majority  vote  of  this  body,  and  that  the  action  of  the 
various  committees  are  merely  preliminary,  the  same  as  any  other 
committee  report  has  to  be  adopted  before  it  is  the  action  of  the 
body. 

Mr.  Wood:  It  occurs  to  me  that  this  resolution  is  simply  to 
instruct  the  committees  how  to  proceed.  I  do  not  know  whether 
the  committees  that  I  form  a  part  of,  understand  their  business  or 
not,  but  the  chances  are  we  will  come  somewhere  near  it  and  the 
other  committees  .will  perhaps  understand  their  duties  about  as 
well  as  they  will  be  informed  by  this  resolution  or  any  other  of  its 
kind.  We  ought  not  to  pass  a  resolution  of  this  character. 

The  interpretation  of  the  resolution  is  simply  exponent  of 
the  law  and  our  convictions  and  what  we' propose  to  do  here. 

Mr.  Price:  Mr.  Wood  (of  Pennington)  expresses  my  views 
exactly  upon  this  question.  This  Convention  has  been  duly  or- 
ganized for  business ;  we  have  a  distinguished  gentleman  to  preside 
over  its  deliberations;  we  have  confidence  in  the  honesty,  integrity 
and  competency  (if  you  please)  of  the  members  who  constitute  this 
body,  and  I  think  as  the  President  of  this  Convention  stated  yes- 
terday he  has  made  no  mistake  in  the  selection  of  his  committees. 
These  matters  have  been  referred  to  these  committees  for  con- 
sideration, and  as  has  well  been  stated  by  the  gentleman  from 
Minnehaha  County  no  part  of  this  Constitution  can  become  a  part 
of  the  Organic  law  of  this  new  State  unless  it  is  adopted  by  a  ma- 
jority vote  of  this  Convention,  and  I  say,  Sir,  without  any  disrespect 
to  the  gentleman  who  has  introduced  this  resolution  that  it  is  an 
insult  to  the  integrity,  and  competency  and  honesty  of  the  gentle- 
men who  compose  this  Convention,  especially  the  committees  to 
whom  it  has  been  referred.  This  resolution  ought  not  to  prevail. 

Mr.  Lee:     I  move  that  the  resolution  be  laid  upon  the  table. 

Which  motion  prevailed. 

Mr.  Boucher:     I  have  a  resolution  I  wish  the  Clerk  would  read. 

Clerk  reads  as  follows: 

That  the  people  of  the  State  of  South  Dakota  hereby  ordain 
and  declare: 

FIRST:  That  pert'ei  t  toleration  of  religious  sentiment  shall 
be  secured,  and  that  no  inhabitant  of  this  state  shall  ever  be  mo- 


104  SOUTH  DAKOTA  DEBATES  1889 


lested  in  person  or  property  on  account  of  his  or  her  mode  of  re- 
ligious worship. 

SECOND:  That  the  people  inhabiting  this  State  do  agree  and 
declare  that  they  forever  disclaim  all  right  and  title  to  the  un- 
appropriated public  lands  lying  within  the  boundaries  thereof, 
and  to  all  lands  lying  within  said  limits  owned  or  held  by  any 
Indian  or  Indian  tribes,  and  that  until  the  title  thereto  shall  have 
been  extinguished  by  the  United  States,  the  same  shall  be  and  re- 
main subject  to  the  disposition  of  the  United  States,  and  the  said 
Indian  lands  shall  remain  under  the  absolute  jurisdiction  and 
control  of  the  Congress  of  the  United  States,  that  the  lands  belong- 
ing to  citizens  of  the  United  States  residing  within  this  State  shall 
never  be  taxed  at  a  higher  rate  than  the  lands  belonging  to  residents 
of  this  State;  that  no  taxes  shall  be  imposed  by  this  State  on  lands 
or  property  therein  belonging  to,  or  which  may  hereafter  be  pur- 
chased by  the  United  States  or  reserved  for  its  use.  But  nothing 
herein  shall  preclude  this  State  from  taxing,  as  other 'lands  are 
taxed,  any  lands  owned  or  held  by  any  Indian  who  has  severed 
his  tribal  relations,  and  has  obtained  from  the  United  States  or 
from  any  person  a  title  thereto  by  patent  or  other  grant,  save 
and  except  such  lands_  as  have  been  or  may  be  granted  to  any 
Indian  or  Indians  under  any  act  of  Congres?  containing  a  pro- 
vision exempting  the  lands  thus  granted  from  taxation  but  that 
all  such  lands  shall  be  exempt  from  taxation  by  this  State  so  long 
and  to  such  extent  as  such  act  of  Congress  may  prescribe. 

THIRD:  That  provision  shall  be  made  for  the  establishment 
and  maintenance  of  systems  of  public  schools,  which  shall  be  open 
to  all  the  children  of  the  State  and  free  from  sectarian  control. 

Mr.  Corson:  I  move  that  that  be  referred  to  the  Committee 
on  Schedule  and  Ordinance. 

Mr.  Sherwood:  I  move  that  it  be  referred  to  the  Committee 
on  Federal  Relations ;  I  propose  it  as  an  amendment  to  the  gen- 
tleman's motion. 

Which  motion  prevailed  and  the  resolution  was  referred  to 
the  Committee  of  Federal  Relation.  By  the  President. 

Mr.  Clough:  I  have  a  little  matter  in  the  nature  of  a  com- 
munication or  resolution  from  a  Sioux  Falls  Preacher's  Meeting, — 
which  upon  being  read  will  explain  itself. 

Clerk  reads: 

To  THE  SOUTH  DAKOTA  CONSTITUTIONAL  CONVENTION: 
GENTLEMEN: — 

This  certifies  that  the  following  resolution:  "Resolved  that 
we  call  upon  the  Constitutional  Convention  to  be  held  at  Sioux 
Falls,  July  4th,  1889,  to  be  put  about  the  election  to  be  held  in 


SUGGESTIONS  FOR  SCHEDULE  AND  ORDINANCE  105 

October,  such  safeguards  as  shall  insure  an  honest  vote  and  to 
prevent  colonization  of  voters,  and  we  also  ask  that  the  election 
of  state  officers  be,  if  possible,  put  on  a  different  day  from  the  vote 
on  the  Capital  and  Constitution",  was  unanimously  passed  at  the 
Sioux  Falls  District  Meeting  of  the  Dakota  Conference,  held  at 
Parker,  May  21st  to  23rd,  1889.  This  District  includes  twenty- 
three  pastoral  charges  in  the  southern  part  of  your  rising  com- 
monwealth. 

L.  HARTSOUGH,  President. 

The  President:  The  communication  will  be  referred  to  the 
Committee  on  Schedule. 

Mr.  Sherwood:  I  would  like  to  have  the  original  motion,  as 
amended,  just  preceding  this  last  communication. 

The  President:  The  amendment  made  was  in  the  nature  of 
a  substitution, — in  effect  a  substitution  clearly,  but  if  the  gentle- 
man prefers  the  original  motion  put  as  amended,  I  will  put  it ;  I 
considered  it  as  a  substitute,  and  so  ordered  the  reference. 

Mr.  Sterling^.     I  move  we  do  now  adjourn. 

Which  motion  prevailed. 


NINTH  DAY. 

Sioux  Falls,  S.  Dak.,  July  12,  1889. 

Two  o'clock  P.  M  . 

The  Convention  re-assembled  pursuant  to  adjournment. 

President  Edgerton  in  the  Chair. 

Prayer  by  the  Chaplain: 

We  thank  Thee,  oh  God,  our  Heavenly  Father,  in  that  Thou 
hast  been  with  us  and  hast  kept  us.  We  ask  Thee,  that  in  this 
session  Thou  wilt  give  us  Thy  spirit  that  our  acts  may  be  pure 
and  our  purposes  of  Thine  own  prompting,  and  that  the  result  of 
this  session  may  be  that  which  shall  bring  happiness  to  future 
generations  and  joy  and  glad  tidings.  We  ask  it  in  Jesus'  name. 

AMEN. 

Reading  of  the  Journal. 

At  this  point  the  President  completed  the  regular  call  of  busi- 
ness and  asked  -what  is  the  further  pleasure  of  the  Convention. 

Mr.  Sherwood:  I  do  not  know  whether  this  is  the  proper 
place  to  present  a  motion  for  the  re-consideration  of  the  matter 
that  transpired  in  yesterdays  proceedings  or  not.  A  matter  came 
up  that,  upon  examination,  was  different  from  what  I  supposed 
it  read;  it  was  in  relation  to  the  memorial  passed  yesterday.  I 
desire  to  say  I  am  in  favor  of  the  memorial.  I  observe  in  the  last 
clause  thereof  something  I  had  not  before  seen, desire  to  read  andthen 
if  it  is  proper  to  reconsider  it  and  offer  an  amendment  by  inserting 
three  words.  In  the  last  paragraph  of  the  memorial,  beginning 
"Therefore  your  memorialists  respectfully"  in  the  fifth  line  thereof 
I  desire  to  move  the  re-consideration  of  the  memorial  to  insert  into 
it  after  the  word  "stayed"  the  words  "upon  school  sections".  I 
think  the  momorial  covers  the  ground  those  who  voted  for  it  in- 
tended it  should  cover,  and  more  too,  in  this,  that  it  is  within  the 
scope  of  it  to  suspend  action,  upon  all  lands;  I  think  the  intention 
was  the  suspension  of  action  upon  the  issuance  of  patents  upon 


108  SOUTH  DAKOTA  DEBATES  1889 

school  sections.  With  a  view  of  moving  that  amendment,  I  move 
you,  Sir,  that  we  re-consider  the  vote  by  which  we  adopted  the 
memorial  yesterday. 

(Motion  seconded.) 

Mr.  Humphrey:  I  would  say  in  my  judgment,  that  that  is 
an  error  in  the  copying  of  the  memorial  in  the  Committee  Room. 
Or  else  at  the  printing  office;  it  is  my  judgment  it  was  the  intention 
of  the  Committee  that  those  words  be  there;  I  understood  it  to 
be  read  that  way  when  it  was  read.  In  reading  it  today  upon  our 
tables  I  find  it  to  be  the  other  way ;  I  am  strongly  in  favor  of  putting 
those  words  in. 

Mr.  Corson:  It  seems  to  me  that  that  appears  in  the  memorial, 
taking  the  first  part  of  it;  it  specifically  states  "that  several  of  the 
most  valuable  sections  of  lands  reserved  for  the  use  of  the  State  for 
school  purposes. 

Mr.  Davies:  It  is  incumbent  upon  the  President  to  order  that 
change  to  be  made  as  it  was  stated  that  that  was  the  intention  of 
the  Committee;  it  appears  to  be  a  clerical  error;  I  would  judge  it 
would  be  competent  to  have  the  minutes  corrected  the  same  in 
that  respect  as  in  other  respects;  it  was  the  intention  and  others 
so  understood  it ;  it  was  a  clerical  error  and  I  judge  it  would  be 
competent  for  the  Chairman  to  order  the  Clerk  to  make  that  cor- 
rection without  any  objection. 

Mr.  Hole:  That  was  one  point  of  our  discussion  yesterday, 
that  is  the  point  I  made  and  the  reason  that  I  opposed  it ;  I  think 
that  if  it  is  corrected  that  it  ought  to  be  by  vote  because  I  thought 
they  did  not  understand  it  yesterday. 

Mr.  Wood:  I  was  going  to  offer  an  amendment  to  the  motion 
that  this  motion  be  to  reconsider  for  all  purposes ;  it  is  confined  to 
one  particular  section;  I  move  to  amend,  that  if  it  be  reconsidered 
that  it  be  for  all  purposes.  I  think  that  is  the  rule,  by  the  way. 

Mr.  Sherwood:  My  object  in  voting  in  favor  of  .the  motion 
might  be  not  to  reconsider  the  whole  but  only  for  this  one  section ; 
I  do  not  know  whether  it  is  competent  for  those  who  voted  against 
a  question  to  vote  to  reconsider  it  entirely. 

The  President:  Will  the  gentleman  from  Pennington  call 
my  attention  to  the  rule?  I  take  it  under  our  rule  anyone  can 
make  this  motion  whether  he  voted  for  or  against. 

Mr.  Jolley:     The  gentleman  from  Pennington  has  forgotten 


RECONSIDERATION"  OF  MEMORIAL  109 

the  rule;  a  person  voting  in  the  majority  can  vote  to  re-consider 
on  that  day  or  on  the  next  two  days;  the  parliirentary  rule  is  very 
clear;  in  Legislative  Assembly  it  would  place  it  upon  the  third 
reading. 

The  President:  My  own  impression  was,  that  when  recon- 
sidered, it  would  then  have  been  upon  its  final  passage  and  subject 
to  all  amendments  that  would  be  proper  at  such  a  stage  of  pro- 
ceeding; I  had  understood  that  a  different  opinion  prevailed.  I 
wanted  my  attention  called  to  the  rule  otherwise  my  opinion  was 
that  as  soon  as  reconsidered  it  was  before  the  Convention  the  same 
as  it  was  upon  its  original  passage. 

Mr.  Humphrey:  The1  intention  of  the  committee  I  believe 
to  be  fully  manifest ;  the  omission  would  be  a  clerical  one  in  the 
Committee  Room.  If  it  is  not  competent  to  have  it  inserted  here 
without  the  consent  of  the  House,  believing  the  memorial  fully 
states  the  ground,  I  move  the  motion  to  reconsider  it  lay  upon  the 
table. 

Which  motion  upon  a  division  of  the  House  was  adopted  by 
a  vote  of  thirty-five  ayes,  to  twenty-seven  nayes. 

Mr.  McCusick:  I  ask  the  Convention  to  excuse  me  from  fur- 
ther attendance  upon  the  Convention,  owing  to  public  duties 
which  I  have  at  home. 

The  President:  The  gentleman  from  Roberts  will  be  excused 
if  the  Chair  hears  no  objection.  The  Chair  hears  none. 

Mr.  Williams:  asked  and  was  granted  leave  of  absence  until 
Monday. 

Mr.  Huntley:  I  would  like  to  call  the  attention  of  the  Con- 
vention, to  the  expenses  of  the  Convention;  the  Committee  on  Ex- 
penditures asks  that  the  members  hand  to  some  member  of  the 
Committee  the  distance  travelled  by  them  in  coming  to  the  Con- 
vention, and  at  as  early  a  date  as  possible  that  the  Committee  may 
discharge  its  duties  and  be  prepared  for  its  final  work. 

Mr.  Eddy  was  upon  his  own  request  excused  until  Tuesi lax- 
morning. 

On  motion  of  Mr.  Sherwood  the  Convention  stood  adjourned 
until  Saturday  afternoon.  July  13. 


TENTH  DAY. 

Sioux   Falls,   Dakota,   July    13th,    1889. 

Two  o'clock  P.  M. 

Convention  re-assembled  pursuant  to  adjournment. 

Convention  calle  i  to  corder  by  Mr.  Corson,  of  Lawrence. 

Clerk,  upon  instructions  by  the  Chairman,  read  the  following 
communication.  ^ 

Sioux  Falls,  Dak.,  July    12th,    1889. 
JUDGE  CORSON: — 

I  shall  be  absent  from  Saturday  until  Monday.  Will  you 
please  act  in  the  meantime  as  President  of  the  Constitutional 
Convention. 

A.  J.  EDGERTOX. 

The  Chaplain:  We  thank  Thee,  oh  God,  our  Heavenly 
Father  for  all  Thy  manifest  kindness  toward  us.  We  ask  Thee 
that  Thy  holy  spirit  may  this  day  thoroughly  imbue  us.  Deal 
graciously  with  all  connected  with  us;  and  those  of  our  number 
who  are  absent ;  bring  us  together  with  a  purpose  and  full  deter- 
mination to  do  just  the  thing  for  the  best  interest  of  those  whom 
we  represent.  Do  Thou  guide  our  steps  and  lead  us  on  the  morrow 
that  we  conduct  ourselves  as  becoming  representatives;  as  those 
worthy  to  be  called  children  of  the  living  God.  We  ask  it  in  Jesus' 
name. 

AMEN. 

The  Journal  of  the  preceding  day  was  read  and  approved. 

The  President  pro  tern  proceeded  with  the  regular  call  of  the 
order  of  business,  without  interruption. 

Mr.  Craig:  I  am  requested  to  present  to  this  Convention  a 
design  of  the  great  seal  of  South  Dakota,  executed  by  a  Chicago 
firm,  and  ask  that  it  be  referred  to  the  Committee  on  Seal. 

The  Chairman:     It  will  be  so  referred. 

Mr.  Young:  It  is  quite  evident  that  there  is  not  a  quorum 
present,  we  cannot  transact  any  business;  I  move  we  adjourn. 

Which  motion  prevailed. 


TWELFTH  DAY. 

Sioux  Falls,  Dakota,  July  15;  1889. 

Two  o'clock  P.  M. 

The  Chaplain:  Our  Heavenly  Father,  we  thank  Thee  for 
the  privilege  that  we  have  had  of  resting  on  the  Sabbath  Day 
and  of  hearing  of  Thy  word  from  which  we  may  gain  wisdom. 
Help  us  now  to  remember  that  the  fear  of  the  Lord  is  the  beginning 
of  wisdom  and  if  we  have  the  right  spirit  toward  God  and  men  we 
shall  surely  prosper  and  do  just  those  things  that  will  be  accep- 
table in  Thy  sight  and  redound  to  our  good  and  the  glory  of  our 
Father  who  liveth  forever.  Hear  us  for  Christ's  sake. 
AMEN. 

Mr.  Dickinson:  I  move  that  the  roll  be  called  to  ascertain 
if  there  be  a  quorum  present. 

Motion  is  seconded. 

Mr.  Humphrey:  I  move  that  the  motion  be  laid  upon  the 
table. 

Which  motion  prevailed. 

Journal  of  Saturday's  session  was  read  and  approved. 

The  order  of  business  fo-r  the  day  was  gone  through  by  the 
President  pro  tern. 

Mr.  Humphrey:  I  offer  the  following  resolution  and  move  its 
adoption. 

Resolved  that  it  is  the  sense  of  this  Convention  that  the  Stand- 
ing Committees  should  report  with  as  much  promptness  and  dis- 
patch as  the  proper  discharge  of  their  duties  will  permit. 

Which  motion  prevailed. 

Mr.  Humphrey:  The  purpose  of  the  resolution  is  this:  The 
Engrossing  and  Enrolling  Committee  have  a  laborious  task  before 
them;  several  of  these  committees  have  but  little  duty  to  perform,. 
a  large  portion  there  will  be  no  alteration  or  amendment  and  so 


REPORTS  OF  COMMITTEES  113 

rapidly  as  these  committees  report  this  Engrossing  and  Enrolling 
Committee  can  proceed  with  their  labors  and  thus  greatly  expedite 
the  labors  of  the  Convention. 

On  motion  of  Mr.  Humphrey,  the  Convention  was  adjourned. 


THIRTEENTH  DAY. 

Sioux  Falls,  Dakota,  July   16th,   1889. 
Two  o'clock  P.  M. 

Convention  re-assembled  pursuant  to  adjournment. 
President  Edgerton  in  the  chair. 

The  Chaplain:  Oh  Lord,  our  God,  we  bless  and  adore  Thy 
name  this  day.  In  our  finiteness  and  ignorance,  we  turn  to 
Thine  infinite  love  and  wisdom  for  strength  and  inspiration.  Do 
Thou  guide  our  deliberations  this  day,  and  may  everything  that 
is  done  redound  to  Thy  glory,  and  the  uplifting  of  mankind.  This 
we  ask  for  Jesus'  sake. 

AMEN. 

The  President:  On  last  Friday  Mr.  McCusick  asked  leave 
of  absence  for  the  balance  of  the  session;  that  leaves  no  member 
from  that  district  on  the  Committee  on  Apportionment  and  unless 
there  is  objection  by  the  Convention,  I  will  appoint  Mr.  Wescott 
in  his  place  from  that  district.  The  Chair  hearing  no  objection, 
appoints  Mr.  Wescott  to  take  the  place  of  Mr.  McCusick  on  the 
Committee  on  Congressional  and  Legislative  Apportionment. 

Mr.  Willis:     I  offer  the  following  resolution: 

Resolved,  that  the  Judiciary  Committee  be,  and  are,  hereby 
requested  to  examine  and  report  to  the  Convention  whether  or 
not  in  their  judgment  any  portion  of  the  $20,000  appropriation 
may  be  used  to  defray  the  expenses  of  the  May  or  October  elections. 

Mr.  Davies:     I  ask  that  the  resolution  be  read  again. 

The  resolution  was  adopted, 

M  r.  Wescott :  I  move  you  that  the  roll  of  standing  committees 
be  read  in  order  that  progeess  may  be  reported. 


116  SOUTH  DAKOTA  DEBATES  1889 

The  President:     If  there  is  no  objection  the  clerk  will  read 
the  list  of  standing  committees. 
Which  was  done. 

The  Committee  on  Executive  and  Administrative  reported 
as  follows: 

To    THE    PRESIDENT    OF    THE    CONSTITUTIONAL    CONVENTION    OF 
SOUTH  DAKOTA. 

We,  the  undersigned,  the  duly  appointed  Executive  and  Ad- 
ministrative Committee  of  this  Convention,  do  hereby  respectfully 
report  that  we  have  carefully  examined  Article  IV  of  the  Consti- 
tuiton  of  the  proposed  state  of  South  Dakota,  approved  by  the 
voters  thereof,  May  14th,  1889,  and  find  that  no  change  is  neces- 
sary or  proper  in  said  Article  IV,  in  order  to  comply  with  the  pro- 
visions of  the  Enabling  Act,  passed  by  the  Congress  of  the  United 
States. 

C.  R.  WESCOTT, 
R.  C.  ANDERSON, 
J.  DOWNING, 
W.  G.  DICKENSON, 
W.  H.  MURPHY. 
Sioux  Falls,  July  1889. 

Mr.  Sterling:  I  move  you  that  the  report  of  the  Executive 
and  Administrative  Committee  be  made  the  special  order  for  to- 
morrow at  the  completion  of  the  regular  call  of  the  business. 
(Seconded.) 

Said  motion  prevailed. 

The  Committee  on  Amendments  and  Revision  of  the  Con- 
stitution made  the  following  report 

Sioux  Falls,  Dakota,  July  16,  1889. 
MR.  PRESIDENT: 

Your  Committee  on  Amendments  and  Revision  of  the  CoYi- 
stitution,  to  whom  was  referred  Article  XXIII  of  the  Constitution, 
beg  leave  to  report  that  we  have  examined  said  Article  and  find 
no  change  necessary  in  order  to  make  the  same  conform  to  the 
Enabling  Act,  and  we  therefore  recommend  that  the  same  be 
submitted  as  originally  drawn. 

L.  T.  BOUCHER, 
J.  DOWNING, 
WM.  COOK, 
WM.  STODDARD, 
C.  J.  B.  HARRIS. 

Mr.  Boucher:  I  move  that  the  report  of  the  Committee  on 
Amendments  to  the  Constitution  be  adopted.  (Seconded.) 


SPECIAL  ORDERS  117 


Mr.  Dickinson:  I  offer  the  substitute  that  it  be  made  the 
special  order  for  tomorrow  afternoon.  (Seconded.) 

Mr.  Sterling:  I  believe  it  would  be  good  policy  to  make  all 
these  reports, — although  it  will  not  take  long  to  consider  them, — 
to  make  them  a  special  order  for  the  next  day  after  they  are  read ; 
we  will  then  have  a  better  opportunity  to  weigh  all  the  provisions 
of  these  various  articles  and  it  will  prevent  any  undue  haste  in 
adopting  the  several  sections. 

The  substitute  to  the  motion  to  adopt  the  report  was  adopted 
by  vote  of  the  Convention. 

Mr.  Van  Tassel:     I  move  we  do  now  adjourn. 

The  motion  prevailed  and  the  Convention  stood  adjourned 
until  tomorrow,  July  17,  1889. 


FOURTEENTH  DAY. 

Sioux  Falls,  Dak.,  July   17,   1889. 

Two  o'clock  P.  M. 

Convention  re-assembled  pursuant  to  adjournment. 

President  Edgerton  in  the  cha:r. 

Prayer  by  Mr.  Clough  as  follows: 

Almighty  God,  our  Heavenly  Father,  we  thank  Thee  for  the 
privilege  of  greeting  Thee  this  day.  Now  we  ask  of  Thee  wisdom 
and  understanding,  for  the  duties  of  this  hour.  Give  us  discretion 
in  all  our  affairs.  May  Thy  blessing  attend  us  for  Christ's  sake. 

AMEN. 

Journal  of  the  preceding  day  was  read  and  no  corrections 
suggested. 

The  President:  I  have  a  long  communication  here  with 
reference  to  the  liquor  question,  and  Prohibition ;  I  refer  it  to  the 
Committee  on  Schedule. 

Also  a  ten  page  communication  in  reference  to  the  name  of 
the  State;  I  refer  it  to  the  Committee  on  Name  and  Boundary. 

Communication  from  T.  D.  Kanouse  was  read  to  the  Conven- 
tion as  follows: 

Sioux  Falls,  S.  D.  July  15th,  1889. 

To  THE  HONORABLE  PRESIDENT  AND  MEMBERS  OF  THE  SOUTH  DA- 
KOTA  CONSTITUTIONAL   CONVENTION,    IN   SESSION   AT   sioux 

FALLS: 
GENTLEMEN: — 

If  it  would  be  your  pleasure  as  a  body,  or  as  individuals,  at 
any  time  during  your  sojourn  in  the  city  to  visit  this  institution, 
you  have  my  most  cordial  invitation  so  to  do.  With  highest 
consideration,  Very  respectfully, 

THEO.  D.  KANOUSE,  Warden. 

The  President:  Reports  of  standing  committees;  the  Clerk 
will  read  the  list  as  ordered,  yesterday. 


120  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Hole:  Before  we  commence  reading  this  list,  I  would 
suggest  that  the  Chairman  of  the  various  committees  report  their 
idea  when  their  reports  will  come  before  the  Convention.  The 
Schedule  Committee  must  necessarily  somewhat  depend  upon  the 
condition  of  the  other  work  and  would  like  the  information. 

Mr.  Jolley:  Under  the  order  of  business  Reports  of  Standing 
Committees,  the  Committee  on  Rules  without  making  a  formal 
report,  have  drawn  up  a  form  and  suggested  that  each  Committee 
use  this  form  in  making  their  report  to  this  Convention.  The 
form  of  the  report  is  now  in  the  hands  of  the  gentleman  from 
Hutchinson.  It  is  substantially  as  follows: 

Sioux  Falls,  Dak.,  July ,  1889. 

MR.  PRESIDENT: 

Your  Committee  on to  whom  was 

referred  Section  ,  entitled ,  have  con- 
sidered the  same  and  have  compared  said  section  with  the  Sioux 
Falls  Constitution  and  the  Act  of  Congress  known  as  the  "Omnibus 

Bill"  and  have  instructed  me  to  report  the  following  section 

of  Article and  that  the  same  is  in  accordance  with  the 

Sioux  Falls  Constitution  and  the  changes  thereto  authorized  by 
the  "Omnibus  Bill". 

The  Committee  on  Rules  thought  the  reports  had  better  be 
uniform  and  that  the  record  had  better  be  made  upon  the  Journal 
of  this  Convention  at  what  date  they  passed. 

Under  the  call  of  business  Reports  from  Standing  Committees, 
the  following  reports  were  made: 

The  Judiciary  Committee  submitted  the  following  report: 
MR.  PRESIDENT: 

Your  Committee  on  Judiciary,  to  whom  was  referred  the 
resolution  requesting  said  Committee  to  examine  and  report  to 
the  Convention  whether  or  not,  in  their  judgment,  any  portion 
of  the  $20,000  appropriation  may  be  used  to  defray  the  expense 
of  the  May  or  October  elections,  beg  leave  to  report:  That  it  is 
the  judgment  of  this  Committee  that  no  part  of  the  said  appropria- 
tion can  be  used  for  the  purpose  of  defraying  the  expenses  of  such 
elections. 

THOMAS  STERLING, 
H.  A.  HUMPHREYS, 
CHAUNCEY  L.  WOOD, 
W.  T.  WILLIAMS, 
C.  G.  SHERWOOD, 
S.  G.  RAMSEY, 
C.  J.  B.  HARRIS, 


RIGHTS  OF  MARRIED  WOMEN  121 

GEO.  C.  COOPER, 
H.  F.  FELLOWS, 
H.  W.  EDDY, 
S.  B.  VAN  BUSKIRK. 
of  the  Judiciary  Committee. 

The  Committee  on  Rights  of  Married  Women  submitted  their 
report  as  follows: 
MR.  President: 

Your  Committee  on  Rights  of  Married  Women,  to  whom  was 
referred  Section  (5)  of  Article  (21)  twenty-one,  entitled,  "Rights 
of  Married  Women",  have  considered  the  same  and  have  compared 
said  section  with  the  Sioux  Falls  Constitution  and  the  act  of  Con- 
gress known  as  the  "Omnibus  Bill",  and  have  instructed  me  to 
report  the  following  as  Section  Five  (5)  of  Article  (21)  Twenty-one 
of  the  Constitution,  and  that  the  same  is  in  accordance  with  the 
Sioux  Falls  Constitution  and  the  changes  thereto  authorized  by 
the  Omnibus  Bill. 

Rights  of  Married  Women. 

SECTION  5.  The  real  and  personal  property  of  any  woman 
in  this  State,  acquired  before  marriage,  and  all  property  to  which 
she  may  after  marriage  become  in  any  manner  rightfully  entitled 
shall  be  her  separate  property,  and  shall  not  be  liable  for  the  debts 
of  her  husband. 

L.  V.  WILLIS, 

Chmn.  of  Com. 
S.  A.  WHEELER, 

T.    F.    DlEFEXDORF, 

T.  W.  THOMPSON, 
J.  G.  DAVIES, 
DAVID  HALL. 

Mr.  Spooner:  I  move  that  the  report  of  the  Committee  on 
the  Rights  of  Married  Women  be  adopted.  (Motion  seconded.) 

Mr.  Sherwood:  I  move  as  an  amendment  that  the  report 
be  made  a  special  order  for  tomorrow. 

Which  motion  prevailed. 

Under  the  order  of  business,  Presentation  of  Resolutions  and 
the  Propositions  Relating  to  the  Constitution: 

Mr.  Sherwood:  I  have  a  resolution  here  I  would  like  to  offer. 
Which  was  read  by  the  Clerk  as  follows: 

WHEREAS:  It  appears  that  several  members  of  the  Consti- 
tutional Convention,  which  convened  in  the  city  of  Sioux  Falls 
on  the  8th  day  of  September,  A.  D.  1885,  did  not,  through  error 
or  accident,  sign  the  Constitution  adopted  on  November  3rd,  1885 
and, 

WHEREAS:     Some  of  the  said  members  of  said 'Convention 


122  SOUTH  DAKOTA  DEBATES,  1889. 

who  have  been  heretofore  prevented  from  signing  said  Constitution, 
are  now  desirious  of  signing  the  same. 

RESOLVED:  That  the  President  of  this  Convention  be  au- 
thorized to  permit  any  duly  and  elected  and  qualified  member  of 
said  Constitutional  Convention  of  1885,  who  has  not  heretofore 
signed  said  Constitution  to  attach  his  signature  to  the  same. 

The  President:  Do  you  ask  its  reference  to  the  Judiciary 
Committee  ? 

Mr.  Sherwood:     Yes,  Sir. 

The  President:     It  is  so  referred. 

The  President:  The  hour  has  arrived  for  the  special  order; 
the  consideration  of  the  two  reports. 

Mr.  Sherwood  of  Clark,  called  to  the  chair. 

Mr.  Dickinson:  I  move  that  the  report  of  the  Committee  on 
Executive  and  Administrative  and  the  Committee  on  Amendments 
and  Revision  of  the  Constitution,  and  made  a  special  order  yester- 
day, be  re-committed  to  the  respective  Committees  in  order  that 
they  may  be  made  to  conform  to  the  uniform  form  that  is  recom- 
mended by  the  Committee  on  Rules. 

The  Chairman:  Do  I  understand  that  refers  to  all  the  business 
made  the  special  order  for  today. 

Mr.  Dickenson:     Yes,  Sir;  those  two  reports. 

Said  motion  prevailed. 

-  Mr.   Sterling      I  move   you  that  the   Committee  now  arise 
and  report  the  action  of  the  Committee. 

The  Chairman:  Do  I  understand  we  are  now  in  Committee 
of  the  Whole? 

Mr.  Sterling:     If  I  am  mistaken  I  withdraw  the  motion. 

Mr.  Lee:  I  do  not  so  understand  it,  that  we  were  in  Com- 
mittee of  the  Whole. 

Mr.  Young:  If  it  is  in  order  I  would  introduce  the  following 
resolution: 

WHEREAS:  The  Fiftieth  Congress,  by  the  Enabling  Act  for 
South  Dakota,  North  Dakota,  Montana  and  Washington,  make 
several  new  grants  of  lands,  moneys  and  buildings  to  South  Dakota, 
upon  its  admission  into  the  Union,  to  be  used  exclusively  for 
specific  purposes ;  and 

WHEREAS:  It  is  a  mooted  question  with  some  members  of 
the  Convention  as  to  whether  it  is  obligatory  on  this  Convention 
and  fitting  for  it  to  acknowledge  and  accept  said  grants  by  a  reso- 
lution of  the  Convention.  Therefore,  be  it 


ACCEPTANCE  OF  LAND  GRANTS  123 

RESOLVED:  That  the  Committee  on  Judiciary  be  requested 
to  report  on  the  necessity  of  such  a  resolution. 

Mr.  Jolley:  I  rise  to  the  point  of  order,  over  the  gentleman 
from  Lake ;  we  are  in  Committee  of  the  Whole. 

Mr.  Wood:     We  are  not  in  Committee  of  the  Whole. 

Mr.  Jolley:  Did  the  Chairman  rule  that?  I  subside.  (Laugh- 
ter.) 

The  resolution  as  presented  by  the  gentleman  from  Lake, 
was  adopted. 

The  Chairman:     It  is  referred  to  the  Committee  on  Judiciary. 

Mr.  Sterling:     I  move  we  adjourn.     (Motion  duly  seconded.) 

Mr.  Spooner:  I  rise  to  the  point  of  order.  Are  we  considered 
as  in  Committee  of  the  Whole?  (Laughter.) 

The  Chairman:  The  Chair  will  state  that  perhaps  he  had 
better  be  advised  in  regard  to  this  matter.  & 

Mr.  Spooner:  There  is  a  difference  of  opinion  among  the 
members. 

The  Chairman:  I  understood  that  no  special  motion  to  go 
into  Committee  of  the  Whole  was  made ;  that  is  what  I  passed  upon ; 
that  no  special  motion  was  made  to  go  into  Committee  of  the 
Whole. 

Mr.  Spooner:  Does  the  Chair  pass  upon  the  question  whether 
we  are  in  Committee  of  the  Whole  or  not? 

The  Chairman:     I  think  we  are. 

Mr.  Spooner:     I  move  that  the  Committee  rise. 

Mr.  Edgerton,  of  Davison:  There  may  be  some  misappre- 
hension; I  understand  that  there  were  special  orders  to  be  con- 
sidered in  the  Convention  today ;  the  time  had  arrived  for  those 
special  orders,  and  we  commence  the  consideration  of  the  special 
orders.  I  called  the  gentleman  from  Clark  to  the  Chair  as  presiding 
Officer  of  the  Constitutional  Convention. 

The  Chairman:  The  motion  to  adjourn  is  before  the  Convention 

Which  motion  prevailed,  and  the  Convention  was  declared 
adjourned. 


FIFTEENTH  DAY. 

Sioux  Falls,  Dakota,  July  18th,  1889. 

Two  o'clock  P.  M. 

Pursuant  to  adjournment,  the  Convention  was  called  to  order 
by  the  President. 

Prayer  was  offered  by  Mr.  Huntley  as  follows: 

O  Lord  God,  our  Heavenly  Father,  we  thank  Thee  for  the 
privilege  of  once  more  taking  up  our  duties  for  this  day,  We 
beseech  of  theethat  Thou  wilt  guide  and  direct  us  in  all  that  we 
undertake  and  that  our  labors  this  day  may  be  pleasing  in  Thy 
sight  and  that  we  may  do  faithfully  the  duties  Thou  hast  committed 
to  us.  Guide  us  by  Thy  spirit,  bless  us  with  Thy  favor  and  when 
we  have  done,  receive  us  back  to  Thyself  to  enjoy  Thine  everlasting 
favor.  These  blessings  we  ask  for  Christ's  sake. 

AMEN. 

The  minutes  of  the  preceding  day  were  read  and  approved. 

At  this  point  the  call  of  the  standing  committees  was  proceeded 
with. 

Mr.  Humphrey:  I  did  not  hear  the  call  of  the  Committee 
on  Education  and  School  Lands.  Their  reports'  are  completed ; 
they  will  be  read  tomorrow. 

Under  the  Order  of  Business,  reports  of  Standing  Committees, 
the  following  reports  were  submitted. 

Sioux  Falls,  South  Dakota,  July  18th,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Compensation  of  Public  Officers  to  whom 
was  referred  Section  2,  of  Article  XXI,  have  considered  the  same 
and  have  compared  said  Section  2  of  Article  X*XI,  with  the  Sioux 
Falls  Constitution  and  the  Act  of  Congress,  known  as  the  "Omnibus 
Bill",  and  have  instructed  me  to  report  the  following  as  Section 
2,  of  Article  XXI  of  the  Constitution,  and  that  the  same  is  in  ac- 
cordance with  the  Sioux  Falls  Constitution  and  the  changes  author- 
ized by  the  Omnibus  Bill. 

SECTION  2.     COMPENSATION  OF  PUBLIC  OFFICERS. — The  Gov- 


126  SOUTH  DAKOTA  DEBATES  1889 

ernor  shall  receive  an  annual  salary  of  two  thousand  five  hundred 
dollars;  the  Judges  of  the  Supreme  Court  shall  each  receive  an 
annual  salary  of  two  thousand  five  hundred  dollars;  the  Judges 
of  the  Circuit  Court  shall  each  receive  an  annual  salary  of  two 
thousand  dollars;  provided  that  the  Legislature  may,  after  the 
year  one  thousand  eight  hundred  and  ninety,  increase  the  annual 
salary  of  the  Governor  and  each  of  the  Judges  of  the  Supreme 
Court  to  three  thousand  dollars,  and  the  annual  salary  of  each  of 
the  Circuit  Judges  to  two  thousand  five  hundred  dollars. 

The  Secretary  of  State,  State  Treasurer,  and  State  Auditor, 
shall  each  receive  an  annual  salary  of  one  thousand  eight  hundred 
dollars;  the  Commissioner  of  School  and  Public  Lands  shall  each 
receive  an  annual  salary  of  one  thousand  eight  hundred  dollars; 
the  Superintendent  of  Public  Instruction  shall  receive  an  annual 
salary  of  one  thousand  eight  hundred  dollars ;  the  Attorney  General 
shall  receive  an  annual  salary  of  one  thousand  dollars;  the  com- 
pensation of  Lieutenant  Governor  shall  be  double  the  compensa- 
tion of  a  State  Senator. 

They  shall  receive  no  fees  or  perquisites  whatever  for  the  per- 
formance of  any  duties  connected  with  their  offices.     It  shall  not 
be  competent  for  the  Legislature  to  increase  the  salaries  of  the 
officers  named  in  this  article,  except  as  herein  provided. 
Respectfully  submitted, 

H.    M.  WILLIAMSON*. 

Chairman 
I.  R.  SPOONER, 
J.  A.  FOWLES, 
CHAUNCEY  L.  WOOD. 

Sioux  Falls,  South  Dakota,  July  18,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Public  Accounts  and  Expenditures,  to 
whom  was  referred  Article XII, entitled,  "Public  Accounts  and 
Expenditures,"  have  considered  the  same  and  have  compared  said 
Article  XII  with  the  Sioux  Falls  Constitution  and  the  Act  of  Congress 
known  as  the  "Omnibus  Bill",  and  have  instructed  me  to  report 
the  following  as  Article  XII  of  the  Constitution  and  that  the  same 
is  in  accordance  with  the  Sioux  Falls  Constitution  and  the  changes 
thereto  authorized  by  the  Omnibus  Bill. 
ARTICLE  XII. 

PUBLIC  ACCOUNTS  AND  EXPENDITURES. 

SECTION  1.  No  money  shall  be  paid  out  of  the  Treasury 
except  upon  appropriation  by  law  and  on  warrant  drawn  by  the 
proper  officer. 

SEC.  2.  The  general  appropriation  bill  shall  embrace  nothing 
but  appropriations  for  ordinary  expenses  of  the  executive,  legis- 
lative and  judicial  departments  of  the  State,  the  current  expenses 
of  state  institutions,  interest  on  public  debt,  and  for  common  schools 


PUBLIC  ACCOUHTS  AND  EXPENDITURES  127 

All  other  appropriations  shall  be  made  by  separate  bills,  each  em- 
bracing but  one  object,  and  shall  require  a  two-thirds  vote  of  all 
members  of  each  branch  of  the  Legislature. 

SEC.  3.  The  Legislature  shall  never  grant  any  extra  com- 
pensation to  any  public  officer,  employe,  agent  or  contractor  after 
the  services  shall  have  been  rendered  or  the  contract  entered  into, 
nor  authorize  the  payment  of  any  claims  or  part  thereof  created 
against  the  State,  under  any  agreement  or  contract  made  without 
express  authority  of  law,  and  all  such  unauthorized  agreements  or 
contracts  shall  be  null  and  void;  nor  shall  the  compensation  of  any 
public  officer  be  increased  or  diminished  during  his  term  of  office; 
provided,  however,  that  the  Legislature  may  make  appropriations 
for  expenditures  incurred  in  suppressing  insurrections  or  repelling 
invasions. 

SEC.  4.  An  itemized  statement  of  all  receipts  and  expen- 
ditures of  the  public  moneys  shall  be  published  annually  in  such 
manner  as  the  Legislature  shall  provide,  and  such  statement  shall 
be  submitted  to  the  Legislature  at  the  beginning  of  each  regular 
session  by  the  Governor  with  his  message. 

A.    0.    RINGSRUD, 
J.  V.  WILLIS, 
M.  R.  HENINGER, 
J.  G.  DAVIES, 
H.  M.  WILLIAMSON 
JOHN  SCOLLARD, 
W.  T.  WIDLIAMS. 
Sioux   Falls,    Dak.,   July,    1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Amendments  and  Revisions  of  the  Con- 
stitution, to  whom  was  referred  Article  23,  entitled,  "Amendments 
and  revisions  of  the  Constitution,"  have  considered  the  same  and 
have  compared  said  article  with  the  Sioux  Falls  Constitution  and 
the  act  of  Congress  known  as  the  "Omnibus  Bill",  and  have  in- 
structed me  to  report  the  following  as  Article  XXIII  of  the  Con- 
stitution, and  that  the  same  is  in  accordance  with  the  Sioux  Falls 
Constitution  and  the  changes  thereto  authorized  bv  the  Omnibus 
Bill". 

ARTICLE  XXIII. 

AMENDMENTS    AND    REVISIONS    OF    THE    CONSTITUTION. 

SECTION  1.  Any  amendment  or  amendments  to  this  Con- 
stitution may  be  proposed  in  either  house  of  the  Legislature  and 
if  t  lie  same  shall  be  agreed  toby  a  majorityof  the  members  elected 
to  each  of  the  two  houses,  such  proposed  amendment  or  amend- 
ments shall  he  entered  in  their  Journals,  with  the  yeas  and  nays 
taken  thereon,  and  it  shall  be  t  he  duty  of  the  Legislature  to  submit 
such  proposed  amendment  or  amendments  to  the  vote  of  the 
people  at  the  next  general  election.  And  if  the  people  shall  up- 


128  SOUTH  DAKOTA  DEBATES  1889 


prove  and  ratify  such  amendment  or  amendments  by  a  majority 
of  the  electors  voting  thereon,  such  amendment  or  amendments 
shall  become  a  part  of  this  Constitution,  provided,  that  the  amend- 
ment or  amendments  so  proposed  shall  be  published  for  a  period 
of  twelve  weeks  previous  to  the  date  of  said  election,  in  such  a 
manner  as  the  Legislature  may  provide;  and  provided  further, 
that  if  more  than  one  amendment  be  submitted  they  shall  be  sub- 
mitted in  such  a  manner  that  the  people  may  vote  for  or  against 
such  amendments  separately. 

SEC.  2.  Whenever  two-thirds  of  the  members  elected  to  each 
branch  of  the  Legislature  shall  think  it  necessary  to  call  a  con- 
vention to  revise  this  Constitution  they  shall  recommend  to  the 
electors  to  vote,  at  the  next  election  for  members  of  the  Legislature, 
for  or  against  a  Convention ;  and  if  a  majority  of  all  the  electors 
voting  at  said  election  shall  have  voted  for  a  Convention,  the 
Legislature  shall,  at  their  next  session,  provide  by  law  for  calling 
the  same.  The  Convention  shall  consist  of  as  many  members  as 
the  House  of  Representatives  and  shall  be  chosen  in  the  same 
manner,  and  shall  meet  within  three  months  after  their  election 
for  the  purpose  aforesaid. 

Sioux  Falls,  South  Dakota,  July  18,  1889. 
MR.  PRESIDENT: — - 

Your  Committee  on  Corporations  Other  Than  Banking  or 
Municipal",  to  whom  was  referred  Article  XVII,  entitled  "Cor- 
porations", have  considered  the  same  and  have  compared  said 
Article  with  the  Sioux  Falls  Constitution  and  the  Act  of  Congress 
known  as  the  "Omnibus  Bill"  and  have  instructed  me  to  report 
the  following  as  Article  XVII  of  the  Constitution  and  that  the 
same  is  in  accordance  with  the  Sioux  Falls  Constitution  and  the 
changes  therein  authorized  by  the  Omnibus  Bill. 
ARTICLE  XVII. 

CORPORATIONS. 

SECTION  1.  No  corporation  shall  be  created  or  have  its  charter 
extended,  changed  or  amended  by  special  laws  except  those  for 
charitable,  educational,  penal  or  reformatory  purposes,  which  are 
to  be  and  remain  under  the  patronage  and  control  of  the  State; 
but  the  Legislature  shall  provide  by  general  laws  for  the  organiza- 
tion of  all  corporations  hereafter  created. 

SEC.  2.  All  existing  charters,  or  grants  of  special  or  exclusive 
privileges,  under  which  a  bona  fide  organization  shall  not  have 
taken  place  and  business  been  commenced  in  good  faith  at  the 
time  this  Constitution  takes  effect,  shall  thereafter  have  no  validity. 

SEC.  3.  The  Legislature  shall  not  remit  the  forfeiture  of  the 
charter  of  any  corporation  now  existing  nor  alter  or  amend  the  same 
nor  passany  other  general  or  special  law  for  the  benefit  of  such  cor- 
poration, except  upon  the  condition  that  such  corporation  shall 


CORPORATIONS  129 


thereafter  hold  its  charter  subject  to  the  provisions  of  this  Consti- 
tution. 

SEC.  4.  The  exercise  of  the  right  of  eminent  domain  shall 
never  be  abridged  or  so  construed  as  to  prevent  the  Legislature 
from  taking  the  property  or  franchises  of  incorporated  companies 
and  subjecting  them  to  public  use,  the  same  as  the  property  of 
individuals  and  the  exercise  of  the  police  power  of  the  State  shall 
never  be  abridged  or  so  construed  as  to  permit  corporations  to 
conduct  their  business  in  such  a  manner  as  to  infringe  the  equal 
rights  of  individuals  or  the  general  well  being  of  the  State. 

SEC.  5.  In  all  elections  for  directors  or  managers  of  a  cor- 
poration, each  member  or  shareholder  may  cast  the  whole  number 
of  his  votes  for  one  candidate,  or  distribute  them  upon  two  or  more 
candidates  as  he  may  prefer. 

SEC.  6.  No  foreign  corporation  shall  do  any  business  in  this 
State  without  having  one  or  more  known  places  of  business  and  an 
authorized  agent  or  agents  in  the  same  upon  whom  process  may 
be  served. 

SEC.  7.  No  corporation  shall  engage  in  any  business  other 
than  that  expressly  authorized  in  its  charter,  nor  shall  it  take  or 
hold  any  real  estate  except  such  as  may  be  necessary  and  proper 
for  its  legitimate  business. 

SEC.  8.  No  corporation  shall  issue  stocks  or  bonds  except 
for  money,  labor  done,  or  money  or  property  actually  received; 
and  all  fictitious  increase  of  stock  or  indebtedness  shall  be  void. 
The  stock  and  indebtedness  of  corporations  shall  not  be  increased 
except  in  pursuance  of  general  law  nor  without  the  consent  of  the 
persons  holding  the  larger  amount  in  value  of  the  stock  first  ob- 
tained, at  a  meeting  to  be  held  after  sixty  days  notice  given  in 
pursuance  of  law. 

SEC.  9.  The  Legislature  shall  have  the  power  to  alter,  revise 
or  annul  any  charter  of  any  corporation  now  existing  and  revoc- 
able at  the  taking  effect  of  this  Constitution,  or  any  that  may  be 
created,  whenever  in  their  opinion  it  may  be  injurious  to  the  cities 
of  this  State;  in  such  a  manner,  however,  that  no  injustice  shall 
be  done  to  the  incorporators.  No  law  hereafter  enacted  shall 
create,  renew  or  extend  the  charter  of  more  than  one  corporation. 

SEC.  10.     No  law  shall  be  passed  by  the  Legislature  granting; 

the  right  to  construct  and  operate  a  street  railroad  within  any  eit  v. 

town  or  incorporated  village  without  requiring  the  consent  of  the 

local  authorities  having  the  control  of  the  street  or  highway  pro- 

to  be  occupied  by  such  street  railroad. 

SEC.  11.  Any  association  or  corporation  organi/ed  for  tho 
purpose  or  any  individual,  shall  have  the  right  to  construct  and 
maintain  lines  of  telegraph  in  this  State,  and  to  connect  the  same 
with  other  lines;  and  the  Legislature  shall,  by  general  law  of 
uniform  operation  provide  reasonable  regulations  to  <^iv<.-  full  e fleet 


130  SOUTH  DAKOTA  DEBATES,  1889. 

to  this  Section.  No  telegraph  company  shall  consolidate  with,  or 
hold  a  controlling  interest  in  the  stocks  or  bonds  of  any  other 
telegraph  company  owning  a  competing  line,  or  acquire  by  pur- 
chase or  otherwise,  any  other  competing  line  of  telegraph. 

SEC.  12.  Every  railroad  corporation  organized  or  doing 
business  in  this  State  under  the  laws  or  authority  thereof  shall 
have  and  maintain  a  public  office  or  place  in  this  State  for  the 
transaction  of  its  business,  where  transfers  of  its  stock  shall  be  made, 
and  in  which  shall  be  kept  for  public  inspection,  books  in  which 
shall  be  recorded  the  amount  of  capital  stock  subscribed,  and  by 
whom ;  the  names  of  the  owners  of  its  stock,  and  the  amount  owned 
by  them  respectively ;  the  amount  of  stock  paid  in ;  and  by  whom ; 
the  transfer  of  said  stock;  the  amount  of  its  assets  and  liabilities, 
and  the  names  and  places  of  residence  of  its  officers.  The  direc- 
tors of  every  railroad  corporation  shall  annually  make  a  report, 
under  oath,  to  the  auditor  of  public  accounts,  or  some  officer  or 
officers  to  be  designated  by  law,  of  all  their  acts  and  doings,  which 
report  shall  include  such  matters  relating  to  railroads  as  may  be 
prescribed  by  law,  and  the  Legislature  shall  pass  laws  enforcing  by 
suitable  penalites  the  provisions  of  this  section. 

SEC.  13.  The  rolling  stock  and  all  other  movable  property 
belonging  to  any  railroad  company  or  corporation  in  this  State 
shall  be  considered  personal  property,  and  shall  be  liable  to  execu- 
tion and  sale  in  the  same  manner  as  the  personal  property  of  in- 
dividuals, and  the  Legislature  shall  pass  no  laws  exempting  such 
property  from  execution  and  sale. 

SEC.  14.  No  railroad  corporation  shall  consolidate  its  stock, 
property  or  franchise,  with  any  other  railroad  corporation  owning 
a  parallel  or  competing  line;  and  in  no  case  shall  any  consolidation 
take  place  except  upon  public  notice,  given  at  least  sixty  days  to 
all  stockholders,  in  such  manner  as  may  be  providid  by  law.  Any 
attempt  to  evade  the  provisions  of  this  section,  by  any  railroad 
corporation,  by  lease  or  otherwise,  shall  work  a  forfeiture  of  its 
charter. 

SEC.  IS'.  Railways  heretofore  constructed,  or  that  may  here- 
after be  constructed,  in  this  State,  are  hereby  declared  public 
highways,  and  all  railroad  and  transportation  companies  are 
declared  to  be  common  carriers  and  subject  to  legislative  control ; 
and  the  Legislature  shall  have  power  to  enact  laws  regulating  and 
controlling  the  rates  of  charges  for  the  transportation  of  passengers 
and  freight  as  such  common  carriers  from  one  point  to  another  in 
this  State. 

SEC.  16.  Any  association  or  corporation  organized  for  the 
purpose  shall  have  the  right  to  construct  and  operate  a  railroad 
between  any  points  within  this  State,  and  to  connect  at  the  State 
line  with  railroads  of  other  states.  Every  railroad  company  shall 
have  the  right  with  its  road  to  intersect,  connect  or  cross  any  other 


BILL  OF  RIGHTS  131 


railroad,  and  shall  receive  and  transport  each  other's  passengers, 
tonnage  and  cars*  loaded  or  empty,  without  delay  or  discrimination. 

SEC.  17.  The  Legislature  shall  pass  laws  to  correct  abuses 
and  prevent  discrimination  and  extortion  in  the  rates  of  freight 
and  passenger  tariffs  on  the  different  railroads  in  this  State,  and 
enforce  such  laws  by  adequate  penalties,  to  the  extent,  if  neces- 
sary for  that  purpose,  of  forfeiture  of  their  property  and  franchises. 

SEC.  18.  Municipal  and  other  corporations  and  individuals 
invested  with  the  privilege  of  taking  private  property  for  public 
use  shall  make  just  compensation  for  property  taken,  injured  or 
destroyed  by  the  construction  or  enlargement  of  their  works, 
highways  or  improvements,  which  compensation  shall  be  paid  or 
secured  before  such  taking,  injury  or  destruction.  The  Legisla- 
ture is  hereby  prohibited  from  depriving  any  person  of  an  appeal 
from  any  preliminary  assessment  of  damages  against  any  such 
corporation  or  individuals,  made  by  viewers  or  otherwise;  and  the 
amount  of  such  damages  in  all  cases  of  appeal  shall  on  the  demand 
of  either  party,  be  determined  by  a  jury,  as  in  other  civil  cases. 

SEC.  19.  The  term  corporations,  as  used  in  this  article, 
shall  be  construed  to  include  all  joint  stock  companies  or  associa- 
tions having  any  of  the  powers  or  privileges  of  corporations  not 
possessed  by  individuals  or  partnerships. 

Sioux  Falls,  Dakota,  July  17,   1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Bill  of  Rights,  to  whom  was  referred 
Article  VI,  entitled  "Bill  of  Rights"  have  considered  the  same  and 
have  compared  said  Article  VI  with  the  Sioux  Falls  Constitution 
and  the  Act  of  Congress  known  as  the  "Omnibus  Bill",  and  have  in- 
structed me  to  report  the  following  as  Article  VI  of  the  Constitution 
and  the  changes  thereto  authorized  by  the  Omnibus  Bill,  to-wit: 
In  Section  Twenty-six  where  the  words  "State  of  Dakota"  appear 
it  shall  be  altered  so  as  to  read  "State  of  South  Dakota." 

COMMITTEE  ON  BILL  OF  RIGHTS. 

J.  R.  SPOONER, 

-Chairman. 
ARTICLE  VI. 

BILL  OF  RIGHTS. 

SECTION  1.  All  men  are  born  equally  free  and  independent, 
and  have  certain  inherent  rights,  among  which  are  those  of  en- 
joying and  defending  life  and  liberty,  of  acquiring  and  protecting 
property  and  the  pursuit  of  happiness.  To  secure  these  rights 
governments  are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed. 

SEC.  2.  No  person  shall  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law. 

SEC.  3.  The  right  to  worship  God  according  to  the  dictates 
of  conscience  shall  never  be  infringed.  No  person  shall  be  denied 


132  SOUTH  DAKOTA  DEBATES  1889 


any  civil  or  political  right,  privilege  or  capacity  on  account  of  his 
religious  opinions;  but  the  liberty  of  conscience  hereby  secured 
shall  not  be  so  construed  as  to  excuse  licentiousness,  the  invasion 
of  the  rights  of  others,  or  justify  practices  inconsistent  with  the 
peace  or  safety  of  the  State.  No  person  shall  be  compelled  to  at- 
tend or  support  any  ministry  or  place  of  worship  against  his  con- 
sent, nor  shall  any  preference  be  given  by  law  to  any  religious 
establishment  or  mode  of  worship.  No  money  or  property  of  the 
State  shall  be  given  or  appropriated  for  the  benefit  of  any  sectarian 
or  religious  society  or  institution. 

SEC.  4.  The  right  of  petition,  and  of  the  people  peaceably 
to  assemble  to  consult  for  the  common  good  and  make  known 
their  opinions,  shall  never  be  abridged. 

SEC.  5.  Every  person  may  freely  speak,  write  and  publish 
on  all  subjects,  being  responsible  for  the  abuse  of  that  right.  In 
all  trials  for  libel,  both  civil  or  criminal,  the  truth,  when  published, 
with  good  motives  or  justifiable  ends,  shall  be  a  sufficient  defense. 
The  jury  shall  have  the  right  to  determine  the  fact  and  the  law 
under  the  direction  of  the  court. 

SEC.  6.  The  right  of  trial  by  jury  shall  remain  inviolate,  and 
shall  extend  to  all  cases  at  law  without  regard  to  the  amount  in 
controversy,  but  the  Legislature  may  provide  for  a  jury  of  less 
than  twelve  in  any  court  not  a  court  of  record,  and  for  the  decision 
of  civil  cases  by  three-fourths  of  the  jury  in  any  court. 

SEC.  7.  In  all  criminal  prosecutions  the  accused  shall  have 
the  right  to  defend  in  person  and  by  counsel ;  to  demand  the  nature 
and  cause  of  the  accusation  against  him;  to  have  a  copy  thereof; 
to  meet  the  witnesses  against  him  face  to  face ;  to  have  compulsory 
process  served  for  obtaining  witnesses  in  his  behalf,  and  to  a  speedy 
public  trial  by  an  impartial  jury  of  the  county  or  district  in  which 
the  offense  is  alleged  to  have  been  committed. 

SEC.  8.  All  persons  shall  be  bailable  by  sufficient  sureties, 
except  for  capital  offenses  when  proof  is  evident  or  presumption 
great.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  in  case  of  rebellion  or  invasion,  the  public  safety 
may  require  it. 

SEC.  9.  No  person  shall  be  compelled  in  any  criminal  case 
to  give  evidence  against  himself  or  to  be  twice  put  in  jeopardy  for 
the  same  offense. 

SEC.  10.  No  person  shall  be  held  for  a  criminal'  offense  unless 
on  the  presentment  or  indictment  of  a  grand  jury,  or  information 
of  a  public  prosecutor,  except  in  cases  of  impeachment,  in  cases 
cognizable  by  county  courts,  by  justices  of  the  peace,  and  in  cases 
arising  in  the  army  or  navy,  or  in  the  militia  when  in  actual  service 
in  time  of  war  or  public  danger;  provided,  that  the  grand  jury  may 
be  modified  or  abolished  by  law. 

SEC.  11.     The  right  of  the  people  to  be  secure  in  their  persons, 


BILL  OF  RIGHTS  133 


houses,  papers  and  effects,  against  unreasonable  searches  and 
seizures  shall  not  be  violated,  and  no  warrant  shall. issue  but  upon 
probable  cause  supported  by  affidavit,  particularly  describing  the 
place  to  be  searched  and  the  person  or  thing  to  be  seized. 

SEC.  12.  No  EX  POST  FACTO  law,  or  law  impairing  the  obli- 
gation of  contracts  or  making  any  irrevocable  grant  or  privilege, 
franchise,  or  immunity,  shall  be  passed. 

SEC.  13.  Private  property  shall  not  be  taken  for  public  use, 
or  damaged,  without  just  compensation  as  determined  by  a  jury, 
which  shall  be  paid  as  soon  as  it  can  be  ascertained,  and  before 
possession  is  taken.  No  benefit  which  may  accrue  to  the  owner 
as  the  result  of  an  improvement  made  by  any  private  corporation 
shall  be  considered  in  fixing  the  compensation  for  property  taken 
or  damaged.  The  fee  of  land  taken  for  railroad  tracks  or  other 
highways  shall  remain  in  such  owners,  subject  to  the  use  for  which 
it  is  taken. 

SEC.  14.  No  distinction  shall  ever  be  made  by  law  between 
resident  aliens  and  citizens,  in  reference  to-  the  possession,  enjoy- 
ment or  descent  of  property. 

SEC.  15.  No  person  shall  be  imprisoned  for  debt  arising  out 
of  or  founded  upon  a  contract. 

SEC.  16.  The  militia  shall  be  in  strict  subordination  to  the 
civil  power.  No  soldier  in  time  of  peace  shall  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of  war,  except 
in  the  manner  prescribed  by  law. 

SEC.  17.  No  tax  or  duty  shall  be  imposed  without  the  consent 
of  the  people  or  their  representatives  in  the  Legilsature,  and  all 
taxation  shall  be  equal  and  uniform. 

SEC.  18.  No  law  shall  be  passed  granting  to  any  citizen,  class 
of  citizens,  or  corporation,  privileges  or  immunities  which  upon 
the  same  terms  shall  not  equally  belong  to  all  citizens  or  corporations. 

SEC.  19.  Election  shall  be  free  and  equal,  and  no  power, 
civil  or  military,  shall  at  any  time  interfere  to  prevent  the  free  ex- 
ercise of  the  right  of  suffrage.  Soldiers,  in  time  of  war,  may  vote 
at  their  post  of  duty  in  or  out  of  the  State,  under  regulations  to  be 
prescribed  by  the  Legislature. 

SEC.  20.  All  courts  shall  be  open,  and  every  man  for  an  in- 
jury done  him  in  his  property,  person  or  reputation,  shall  have 
remedy  by  due  course  of  law,  and  right  and  justice,  administered 
without  denial  or  delay. 

SEC.  21:  No  power  of  suspending  law  shall  be  exercised  un- 
less by  the  Legilsature  or  its  authority. 

SEC.  22.  No  person  shall  be  attained  of  treason  or  felony 
by  the  Legislature. 

SEC.  23.  Excessive  bail  shall  not  be  required,  excessive  fines 
imposed,  nor  cruel  punishments  inflicted. 


134  SOUTH  DAKOTA  DEBATES  1889 

SEC.  24.  The  rights  of  the  citizens  to  bear  arms  in  defense 
of  themselves  and  the  State  shall  not  be  denied. 

SEC.  25.  Treason  against  the  State  shall  consist  only  in 
levying  war  against  it,  or  in  adhering  to  its  enemies,  or  in  giving 
them  aid  or  comfort.  No  person  shall  be  convicted  of  treason  un- 
less on  the  testimony  of  two  witnesses  to  the  same  overt  act  or 
confession  in  open  court. 

SEC.  26.  All  political  power  is  inherent  in  the  people  and  all 
free  government  is  founded  on  their  authority,  and  is  instituted  for 
their  equal  protection  and  benefit,  and  they  have  the  right  in 
lawful  and  constituted  methods  to  alter  or  reform  their  forms  of 
government  in  such  manner  as  they  may  think  proper.  And  the 
State  of  Dakota  is  an  inseparable  part  of  the  American  Union  and 
the  Constitution  of  the  United  States  is  the  supreme  law  of  the 
land. 

SEC.   27.     The  blessings  of  a  free  government  can  only  be 
maintained  by  a  firm  adherance  to  justice,  moderation,  temperance, 
frugality  and  virtue,  and  by  frequent  recurrence  to  fundamental 
principles. 
MR.  PRESIDENT: — 

Your-  Committee  on  Municipal  Corporations  to  whom  was 
referred  Article  X,  entitled,  "Municipal  Corporations",  have  con- 
sidered the  same  and  have  compared  said  Article  X  with  the  Sioux 
Falls  Constitution  and  the  Act  of  Congress  known  as  the  "Omnibus 
Bill"  and  have  instructed  me  to  report  the  following  as  Article 
X  of  the  Constitution  and  that  the  same  is  in  accordance  with  the 
Sioux  Falls  Constitution  and  the  changes  fhereto  authorized  by 
the  Omnibus  Bill. 

DAVID  HALL, 
H.  L.  FELLOWS, 
J.  F.  WOOD, 
GEO.  C.  COOPER, 
J.  ATKINSON, 
ARTICLE  X. 

MUNICIPAL  CORPORATIONS. 

SECTION  1.  The  Legislature  shall  provide  by  general  laws 
for  the  organization  and  classification  of  municipal  corporations. 
The  number  of  such  classes  shall  not  exceed  four  and  the  powers 
of  each  class  shall  be  defined  by  the  general  laws,  so  that  no  such 
corporations  shall  have  any  powers,  or  be  subject  to  any  restrictions 
other  than  all  corporations  of  the  same  class.  The  Legislature 
shall  restrict  the  power  of  such  corporations  to  levy  taxes  and 
assessments,  borrow  money  and  contract  debts,  so  as  to  prevent 
the  abuse  of  such  power. 

SEC.  2.  Except  as  otherwise  provided  in  this  Constitution, 
no  tax  or  assessment  shall  be  levied  or  collected,  or  debts  contracted 
by  municipal  corporations,  except  in  pursuance  of  law,  for  public 


LIMITATIONS  OF  ORGANIC  ACT  135 

purposes  specified  by  law ;  nor  shall  money  be  raised  by  taxation, 
loan  or  assessment,  for  one  purpose,  ever  be  diverted  to  any  other. 

SEC.  3.  No  street  passenger  railway  or  telegraph  or  telephone 
line  shall  be  constructed  within  the  limits  of  any  village,  town  or 
city  without  the  consent  of  its  local  authorities. 

Mr.  President:  The  report  of  the  Committee  on  Compensa- 
tion of  Public  Officers  is  before  the  Convention ;  what  will  the  Con- 
vention do  with  the  report? 

Mr.  Sterling:  I  move  it  be  made  a  special  order  for  tomorrow's 
session. 

Which  motion  prevailed. 

The  President:  The  report  of  the  Committee  on  Amendments 
and  Revision  of  the  Constitution  is  before  the  Convention;  what 
will  you  do  with  this  report? 

Mr.  Willis:  I  move  that  the  remainder  of  the  reports  of 
Standing  Committees  as  made  today  be  made  a  special  order  for 
tomorrow. 

Which  motion  prevailed. 

The  President:  What  is  the  further  pleasure  of  the  Con- 
vention; the  Convention  has  a  special  order  for  this  hour? 

Report  of  the  Committee  on  Rights  of  Married  Women  was 
read  by  the  Clerk. 

Mr.  Sterilng:     I  move  the  adoption  of  the  report. 

Which  motion  was  duly  seconded. 

Mr.  Humphrey:  I  am  not  fully  satisfied  with  the  form  of 
the  report ;  though  I  would  not  knowingly  cast  upon  the  Committee 
any  reflection  as  I  am  one  of  them.  I  neglected  to  confer  with 
the  Committee  in  regard  to  it.  The  point  I  have  in  mind  is  simply 
this ;  we  are  not  here  to  draft  an  article  or  section  of  the  Constitu- 
tion, as  stated  in  this  report,  in  compliance  with  the  Constitution 
and  the  Omnibus  Bill ;  we  are  here  only  for  the  purpose,  under 
restrictions,  to  draft  such  changes  and  amendments  as  are  required 
by  the  provisions  of  the  Omnibus  Bill.  This  report  here,  purports 
to  be  simply  a  section  of  the  proposed  Constitution  which  they 
inform  us  in  their  report  is  in  compliance  with  the  Constitution 
and  the  Omnibus  Bill ;  that  the  people  are  without  any  knowledge 
that  it  is  the  original  Constitution;  the  point  is  that  every  report 
of  the  Standing  Committees  should  clearly  and  plainly  show  what 
changes  if  any,  are  made  in  the  Constitution  by  their  report. 

Mr.  Jolley:     I  do  not  understand  that  this  report,  handed 


136  SOUTH  DAKOTA  DEBATES  1889 

in  yesterday  by  the  Committee  on  Rules,  is  ironclad;  only  they 
want  some  uniform  report ;  they  can  report  in  addition  to  that  any 
change  that  is  made.  The  gentleman  from  Faulk  County  can,  if 
he  wishes,  lumber  up  the  record;  they  have  the  right  to  do  it; 
nothing  to  stop  them;  no  rule,  made  by  a  committee  of  this  Con- 
vention can  stop  them;  if  each  Committee  report  that  they  have 
compared  this  article  with  the  Sioux  Falls  Constitution  and  have 
made  such  changes  as  are  authorized  by  the  Omnibus  Bill,  if  in 
addition  to  that  they  want  to  go  into  detail  and  show  what  changes 
they  have  made,  I  do  not  know  any  rule  to  preclude  them. 

Mr.  Humphrey:  They  do  not  show  that  there  is  any  changes, 
or  that  it  is  in  accordance  with  the  Constitution.  "And  have  in- 
structed me  to  report  the  following  as  section"  so  and  so,  "which 
is  in  compliance  with  the  Constitution  and  Omnibus  Bill"!  No, 
Mr.  President,  I  do  not  desire  to  lumber  or  cumber  up  the  records 
of  our  Journal,  but  I  do  hold  that  the  Journal  ought  to  show  to 
those  whenever  reading  it  say  a  hundred  years  from  now,  any  amend- 
ment made  in  the  Constitution.  It  seems  to  me  to  take  this  report 
where  it  ends  and  add,  "And  we  report  the  following  changes  and 
amendments"  (then  truly  state  what  they  are)  and  then  let  the 
form  read  as  follows:  "Your  Committee  respectfully  recommend 
the  amendments",  etc.  We  are  not  here  to  adopt  that  Constitu- 
tion we  are  here  for  its  revision,  and  if  the  report  follow  the  words, 
"We  are  instructed  to  report  the  following  changes  and  amend- 
ments" (briefly  state  them)  and  then  state  that  the  article  as 
amended  will  read  as  follows, — then  recommend  the  adoption  of 
the  amendment  in  the  submission  of  the  article. 

The  President:  Is  the  Convention  ready  for  the  question? 
It  is  moved  that  the  report  of  the  Committee  be  adopted. 

The  motion,  reaching  a  vote,  was  duly  carried  and  the  report 
of  the  Committee  on  Rights  of  Married  Women  was  duly  declared 
adopted. 

Mr.  Humphrey:  I  move  you  that  the  report  of  Standing 
Committees  be  required  to  clearly  and  plainly  show  what,  if  any, 
changes  and  amendments 'of  the  Constitution  are  proposed. 

Mr.  Hole:  I  move  that  the  resolution  be  referred  to  the  Com- 
mittee on  Rules. 

Which  motion  prevailed. 

Mr.  Sterling:     I  move  you,  Sir,  that  the  report  of  the  Committee 


RIGHTS  OF  MARRIED  WOMEN  137 

on  Rights  of  Married  Women  just  adopted,  be  referred  to  the  Com- 
mittee on  Arrangement  and  Phraseology. 

The  President:  I  do  not  think  it  is  necessary  for  the  Con- 
vention to  so  order;  it  would  go  there  if  it  is  not  ordered. 

Mr.  Sterling:  I  may  be  mistaken ;  my  opinion  is  the  reports 
should  go  to  the  Committee  on  Arrangement  and  Phraseology  and 
after  that  Committee  report  that  there  should  be  a  vote  taken  on 
the  Constitution  as  a  whole  and  upon  that  the  ayes  and' nays  should 
be  called  and  we  should  pass  it  as  upon  the  final  passage  of  a  bill 
in  any  body. 

Mr.  Davies:     I  move  that  we  adjourn. 

Which  motion  prevailed  and  the  Convention  was  adjourned 
until  Friday,  July  19th,  1889,  at  two  P.  M. 


SIXTEENTH  DAY. 

Sioux  Falls,  Dak.,  July  19th,  1889. 

Two  o'clock  P.  M. 

Pursuant  to  adjournment  the  Convention  re-assembled  with 
President  Edgerton  in  the  chair. 

Prayer  was  offered  by  Mr.  Matson  as  follows: 

O  God,  our  Father,  we  recognize  Thee  as  the  Giver  of  all  good. 
Thou  art  our  sufficiency  in  times  of  temptation  and  in  need.  In 
trial  we  have  the  assurance  that  all  our  needs  shall  be  supplied 
according  to  Thy  wishes.  If  we  lack  wisdom  we  are  encouraged 
to  ask  of  Thee,  who  giveth  liberally.  We  acknowledge  at  this  hour 
our  need  of  wisdom  and  understanding  in  our  work  and  most 
ardently  do  we  pray  that  we  may  receive  of  Thy  knowledge  so  that 
all  we  do  may  be  approved  of  Thee.  May  it  commend  itself  to 
the  best  judgment  of  the  people.  We  ask  that  Thou  wilt  help  us 
to  be  thoughtful  and  discreet,  carefully  weighing  all  the  interests 
that  may  come  before  us  for  our  consideration,  both  here  and  in 
our  committees.  May  we  studiously  endeavor  to  be  both  harmless 
and  wise.  We  ask  that  we  may  personally  be  careful  that  we 
injure  no  man  in  his  rightful  interests,  and  also  personally  alert 
that  we  do  no  injury  to  those  interests  pertaining  to  the  best  wel- 
fare of  the  people.  We  ask  these  things  in  our  Redeemer's  name. 

AMEN. 

Mr.  Fellows:  I  move  that  we  dispense  with  the  reading  of 
the  Journal. 

Which  motion  prevailed. 

Mr.  Spooner:  Ought  we  not  to  make  corrections  now  in  the 
Journal  where  they  have  been  observed?  I  notice  the  names  of 
some  of  the  Committees  have  been  omitted.  The  Committee  on 
Amendments  and  Revision  of  the  Constitution ;  also  the  Committee 
on  Corporations  Other  Than  Banking  and  Municipal,  the  names 
of  the  Committee  have  been  omitted ;  I  move  that  they  be  inserted. 

The  President:  They  will  be  inserted  where  they  are  not  in 
the  report.  The  Clerk  will  so  correct  it. 


140  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Spooner:  Also  in  regard  to  the  uniformity  in  the  reports 
according  to  the  form  which  was  suggested  by  the  Committee  on 
Rules,  it  would  indicate  that  the  Chairman  only  was  to  sign  which 
I  did  in  the  case  of  the  Committee  on  the  Bill  of  Rights ;  I  move 
that  the  names  of  the  whole  Committee  be  inserted. 

The  President:  I  would  suggest,  Dr.  Spooner,  that  sug- 
gestions do  not  go  in  the  record. 

Mr.  Spooner:  I  move  that  in  the  case  of  the  report  of  the 
Committee  on  Bill  of  Rights  that  the  names  of  the  whole  Com- 
mittee be  inserted. 

Which  motion  prevailed. 

The  President:  The  Clerk  would  like  to  have  the  Chairman 
of  the  Committee  inform  him  who  would  make  the  correction ;  the 
difficulty  is,  the  report  is  printed  and  handed  in;  now  the  Clerk  is 
ordered  to  amend  the  report;  that  is  in  and  printed;  the  report 
was  made  yesterday,  signed  by  the  Chairman  and  has  become  a 
part  of  the  records  of  this  Convention;  now  the  Convention  orders 
it  amended. 

Mr.  Hole:  I  see  no  way  but  to  make  a  motion  to  re-commit 
it  to  the  Committee,  and  let  it  come  in  properly  signed. 

Mr.  Dickinson:  As  I  am  a  member  of  the  Committee  I  would 
like  to  make  a  statement ;  I  am  not  so  desirous  for  glory  that  I  want 
my  name  to  appear  with  all  the  Committees  of  which  I  am  a  mem- 
ber. It  will  save  a  good  deal  of  printing  if  only  the  name  of  the 
Chairman  appears;  I  should  prefer  to  let  it  remain  as  it  is,  the 
Chairman  reporting  in  behalf  of  the  Committee. 

Mr.  Sterling:  I  move  that  we  re-consider  the  vote,  by  which 
the  Clerk  was  instructed  to  amend  this  report. 

Which  motion  prevailed. 

The  President:  The  question  now  before  the  Convention  is, 
shall  the  Clerk  amend  the  report  of  the  Committee  by  adding 
the  balance  of  the  names  of  the  Committee  to  the  report? 

Mr.  Humphrey:  It  would  seem  to  me  that  the  position  held 
by  the  Chair  is  that  of  order.  It  is  incompetent  for  us  to  amend 
this  report  until  the  report  is  before  the  Convention  for  consider- 
ation and  the  omission  of  the  names  would  be  regarded  as  an 
ordinary  error  of  the  Journal,  and  might  be  inserted  simply  as 
the  Journal.  It  does  not  seem  to  me  proper  to  take  up  that  re- 
port prior  to  the  time  that  we  have  the  report  itself  before  the  Con- 


FORM  OF  COMMITTEE  REPORTS  141 

vention  for  consideration.  I  do  not  think  it  would  be  a  proper 
time  to  consider  an  amendment  to  the  report  and  think  the  motion 
is  out  of  order. 

The  President:  The  motion  before  the  "Convention  is,  shall 
the  Clerk  amend  the  report  of  the  Committee? 

Which  motion  was  lost. 

Under  the  order  of  business,  reports  from  Standing  Committees ,. 
Mr.    Stoddard  as  Chairman  of  the  Committee   on   Election  and 
Right  of  Suffrage,  reported  as  follows: 
MR.  PRESIDENT: — 

The  Committee  to  whom  was  referred  Article  VII,  entitled, 
"Election  and  Right  of  Suffrage"  respectfully  report  that  we  have 
found  the  same  to  be  in  conformity  with  the  Enabling  Act  and 
recommend  that  no  alterations  be  made,  and  the  article  as  attached 
hereto  I  send  to  the  Secretary's  desk. 

Mr.  Murphy:  As  Chairman  of  the  Committee  on  Federal 
Relations,  I  report  that  our  report  is  ready  and  is  sent  to  the  desk 
of  the  Secretary. 

Education  and  School  Lands. 

Mr.  Humphrey:  In  the  absence  of  Mr.  Coats,  the  Committee 
have  prepared  a  report  and  it  is  ready  with  the  exception  of  a 
couple  of  signatures  of  a  couple  of  members  who  have  not  yet 
arrived. 

State  Institutions  and  Public  Buildings. 

Mr.  Young:     The  report  is  sent  to  the  desk. 

Exemptions. 

Mr.  Buechler:     The  report  is  in  the  hands  of  the  Secretary. 

Mr.  Davies:  The 'report  of  the  Committee  on  Banking  and 
Currency,  is  ready  and  sent  to  the  desk  of  the  Clerk. 

Mr.  Clough:  The  report  of  the  Committee  on  Military  af  - 
fairs  is  ready,  but  three  members  of  the  Committee  are  absent. 

Mr.  Houlton:  Announced  that  the  report  of  the  Commit  to- 
on Seal  and  Coat  of  Anns  was  ready  and  sent  to  the  Clerk's  desk. 

Mr.  Eddy:  The  report  of  the  Committee  on  Miscellaneous 
Subjects  is  ready  and  sent  to  the  desk. 

Mr.  Lee:  I  announce  the  report  of  the  Committee,  on  Manu- 
factures and  Agriculture,  as  complete  with  the  exception  of  one 
name,  an<l  as  in  the  hands  of  the  Oerk. 


142  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Sterling:  I  send  to  the  Clerk's  desk  the  report  of  the 
Judiciary  Committee  on  the  resolution  referred  to  it. 

Under  the  order  of  business  consideration  of  reports  of  Stand- 
ing Committees. 

Mr.  Davies:  I  move  that  the  reports  of  the  Standing  Com- 
mittees of  today,  be  made  the  special  order  for  tomorrow. 

Mr.  Dickinson:  I  move  as  an  amendment  that  it  be  made  a 
special  order  for  Tuesday. 

Mr.  Davies:     I  accept  that. 

The  motion  prevailed  and  the  reports  were  made  the  special 
order  for  Tuesday  afternoon. 

The  President:  The  time  for  the  special  order  has  arrived; 
we  will  now  proceed  to  the  consideration  of  the  reports  of  yesterday, 
made  a  special  order  for  today. 

Mr.  Van  Buskirk,  of  Codington  County,  called  to  the  chair. 

The  Chairman:  The  first  matter  upon  the  special  order  is 
the  report  of  the  Committtee  on  Compensation  of  Public  Officers, 
read  as  follows  by  the  Clerk. 

The  Chairman:  Gentleman,  what  will  you  do  with  the  report 
of  this  Committee? 

Mr.  Sterling:     I  move  the  adoption  of  the  report  as  read. 

The  Chairman:  Is  there  anything  to  be  said  upon  this  motion  ? 
If  so  you  will  have  an  opportunity  to  make  any  suggestions, — the 
motion  is  to  adopt  the  report  of  the  Committee  on  Compensation 
of  Public  Officers. 

The  matter  coming  to  a  vote  prevailed,  and  the  report  of  the 
Committee  was  declared  adopted. 

The  Clerk:  Reads  the  report  of  the  Committee  on  Public 
Accounts  and  Expenditures  as  follows: 

The  Chairman:  The  report  of  the  Committee  on  Public  Ac- 
counts and  Expenditures  is  before  the  Convention;  what  will  you 
do  with  it? 

Mr.  Davies:     I  move  that  the  report  be  adopted. 

Motion  seconded. 

.Mr.  Humphrey:  I  should  like  to  inquire  of  the  Committee 
what  changes  or  amendments  are  made  in  their  report  from  the 
original  Constitution. 

Mr.  Jolley:  The  Chairman  of  the  Committee  is  away;  I  know 
there  are  no  changes  made. 


CONSIDERATION  OF  REPORTS  143 

The  Chairman:  The  motion  before  the  Convention  now  is, 
shall  we  adopt  the  report  of  the  Committee  on  Public  Accounts? 

The  motion  prevailed,  and  the  Chair  announced  that  said 
report  was  adopted. 

The  Clerk  reads  the  report  of  the  Committee  on  Amendments 
and  Revision  of  the  Constitution,  as  follows: 

The  Chairman:  Gentlemen  of  the  Convention,  you  have 
before  you  the  report  of  the  Committee  on  Amendments  and  Re- 
vision of  the  Constitution. 

Mr.  Dickinson:  I  notice  in  Section  2,  near  the  last  of  the 
Section,  the  Convention  was  to  consist  of  as  many  members  as 
the  House  of  Representatives.  When  the  copy  of  the  Constitution 
in  the  hand  book  was  compared  with  the  original  Constitution 
it  was  found  that  the  words  "Of  the  Legislature"  was  inserted 
there;  I  think  they  are  omitted.  It  should  be  the  House  of  Rep- 
resentatives of  the  Legislature. 

The  Chairman:     Do  you  make  the  motion? 

Mr.  Dickinson:  I  move  that  it  be  re-committed  to  the  Com- 
mittee for  amendment  in  that  particular. 

Mr.  Boucher:  I  move  as  an  amendment  that  the  amendment 
be  made  at  this  time  without  re-committing  the  report. 

Mr.  Hole:  I  would  like  to  inquire  of  the  Chairman  of  the 
Committee  with  what  copy  this  is  compared  by  the  Committees. 
If  it  is  compared  with  the  various  copies  that  are  floating  around, 
I  can  see  how  these  mistakes  will  be  made. 

Mr.  Boucher:  I  will  state  I  had  what  I  supposed  was  a 
correct  copy.  The  correction  was  made  at  the  time  Mr.  Humphrey 
was  Chairman  of  the  Committee..  I  thought  he  had  a  correct  copy. 

Mr.  Humphrey:  I  would  like  to  inquire  what  is  the  question 
before  the  House  as  it  stands. 

The  Chairman:  I  do  not  remember  whether  the  first  motion 
as  made  was  seconded. 

Mr.  Sterling:  I  seconded  the  amendment  that  the  correction 
be  made  now. 

Mr.  Humphrey:  I  would  suggest  that  in  connection  with 
that  errata  found  in  the  hand  book  that  that  is  an  error  on  the 
part  of  the  Committee  without  doubt.  The  correction  will  be 
made  by  the  Committee  from  the  errata.  I  remember  well  that 


144  SOUTH  DAKOTA  DEB.ATES  1889 

the  number  should  be  the  number  of  the  members  of  the  House 
of  Representatives  of  the  Legislature. 

The  Chairman:  The  motion  of  Mr.  Dickinson  was  that  it 
be  referred  back  to  the  Committee  for  correction;  the  amendment 
was  made  that  it  be  now  amended  in  this  particular,  by  inserting 
these  words,  "Of  the  Legislature" ;  are- you  ready  for  the  question? 

The  amendment  prevailed. 

The  Chairman:  The  motion  of  Mr.  Dickinson  as  now  amended 
will  be  put. 

The  motion  prevailed. 

The  Clerk  reads  the  report  of  the  Committee  o'n  Corporations 
Other  Than  Banking  and  Municipal,  as  follows: 

Mr.  Dickinson:  As  this  article  is  quite  length  yand  no  changes 
were  made  in  it,  I  move  that  the  reading  of  it  be  dispensed  with. 

Mr.  Corson:  I  would  ask  the  Chairman  of  this  Committee  if 
any  changes  were  made. 

Mr.  Dickinson:  I  am  Chairman  of  that  Committee  and  there 
were  no  changes  made  in  that  article. 

The  Chairman:  Unless  there  are  objections  made,  the  reading 
of  the  report  will  be  dispensed  with. 

The  motion  to  adopt  said  report  reaching  a  vote,  prevailed. 

The  report  of  the  Committee  on  Bill  of  Rights  was  read  by 
the  Clerk  as  follows:  (Here  insert.) 

The  Chairman:  You  have  before  you  the  report  of  the  Com- 
mittee on  Bill  of  Rights ;  what  is  the  pleasure  of  the  Convention. 

Mr.  Fellows:  I  would  like  to  have  the  report  of  the  Com- 
mittee as  to  what  changes  they  have  made. 

Mr.  Spooner:  The  amendment  was  indicated  in  the  report 
as  read  by  the  Clerk. 

The  Chairman:  Perhaps  the  Chairman  might  add  it  is  the 
original  bill  only  with  the  word  added  that  would  make  it  read 
as  desired. 

Mr.  Boucher:  I  move  that  the  report  of  the  Committee  on 
Amendments  and  Revision  of  the  Constitution  be  adopted. 

Which  motion  was  seconded. 

The  Chairman:  This  is  the  report  of  the  Committee  on  Bill 
of  Rights;  I  think  the  report  of  the  Committee  on  Amendments 
and  Revision  of  the  Constitution  has  been  adopted ;  I  so  understand 
it ;  this  is  the  Bill  of  Rights  that  is  under  consideration  now. 


BILL  OF  RIGHTS  ADOPTED  145 

Mr.  Chairman:  The  question  before  the  House  now  is  upon 
the  adoption  of  the  report  of  the  Committee  upon  the  Bill  of 
Rights.  As  I  understand,  it  is^precisely  as  before  with  the  ex- 
ception of  the  amendment  so  that  it  will  read  "South  Dakota" 
instead  of  "Dakota". 

The  motion  prevailed  and  the  report  of  the  Committee  on 
Bill  of  Rights  was  adopted. 

Mr.  Dickinson:  It  is  my  recollection,  that  Mr.  Boucher  is 
correct  as  to  the  report  of  the  Committee  on  Amendments  and 
Revision  of  the  Constitution  not  having  been  adopted.  It  was  the 
report  to  which  I  made  an  amendment ;  it  was  amended  and  I 
do  not  recollect  that  the  motion  was  made  to  adopt  the  report  as 
amended.  I  move  you,  Sir,  that  the  report  as  amended  be  adopted- 
Mr.  Atkinson ;  That  is  my  recollection ;  I  second  the  motion. 

Mr.  Humphrey:  I  would  like  to  have  the  Chairman  state  to 
the  Convention  if  there  was  any  amendment  or  alteration  reported. 

Chairman  of  the  Committee:     No  there  was  not. 

The  motion  to  adopt  the  report  of  the  Committee  on  Amend- 
ments and  Revision  of  the  Constitution  as  amended,  prevailed. 

The  Chairman:  The  next  order  of  business  is  consideration 
of  the  Committee  on  Municipal  Corporations. 

The  Clerk  reads  the  report  of  the  Committee  as  follows:  (Here 
insert  it). 

Mr.  Davies:     I  would  ask  if  there  were  any  changes  in  this. 

Mr.  Whitlock :     There  was  none. 

Mr.  Davies:     I  move  the  adoption  of  the  report. 

Which  motion  prevailed. 

Mr.  Atkinson:  I  notice  in  the  names  of  the  Committee  as 
printed  is  "J.  Atkinson";  I  move  it  be  changed  to  read  "I.  At- 
kinson." 

Which  motion  prevailed. 

Mr.  Harris  moved  that  the  Convention  do  now  adjourn. 

Mr.  Sterling:  There  were  some  reports  from  the  Judiciary 
Committee ;  other  than  the  reports  upon  the  general  work  assigned 
to  them ;  I  suppose  it  would  be  well  to  read  those  reports ;  they 
are  up  in  the  Clerk's  desk. 

The  Clerk  read  as  follows: 
MR.  PRESIDENT: — 

Your  Committee  on  Judiciary,  to  whom  was  referred  the 
resolution  requesting  the  Committee  to  report  as  to  the  necessity 


J46  SOUTH' DAKOTA  DEBATES,  1889. 

of  accepting  the  several  new  grants  of  lands,  moneys  and  buildings 
to  South  Dakota  by  a  resolution  of  the  Convention,  would  respect- 
fully report:  That  without  determining  the  necessity  of  such 
resolution,  the  Committee  recommend,  that  a  section  be  incorpor- 
ated in  the  Constitution,  formally  accepting  such  grants. 

THOMAS  STERLING, 
H.  A.  HUMPHREY, 
A.  J.  BERDAHL, 
H.  W.  EDDY, 
W.  T.  WILLIAMS, 
S.  A.  RAMSEY, 
D.  CORSON, 

C.  J.  B.  HARRIS, 

S.  B.  VAN  BUSKIRK, 
of  the  Judiciary  Committee 

The  President:  What  will  the  Convention  do  with  the  report 
of  the  Committee? 

Mr.  Wescott:     I  move  that  the  report  be  adopted. 
Mr.  Davies:     I  would  amend  that  and  make  it  the  special 
order  for  next  Tuesday. 

Mr.  Humphrey:     I  move  as  a  substitute  of  the  motion  before 
the  House  that  the  report  of  the  Judiciary  Committee  be  referred 
to  the  Committee  on  Amendments  and  Revision  of  the  Consti- 
tution with  instructions  to  report  on  Tuesday. 
Which  motion  prevailed. 

The  Clerk  reads  the  second  report  of  the  Committee  on  Ju- 
diciary, as  follows: 

Sioux  Falls,  July  19,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Judiciary  to  whom  was  referred  the  reso- 
lution pertaining  to  the  signing  of  the  Constitution  by  members 
of  the  Constitutional  Convention  of  1885,  who  by  inadvertance 
or  other  cause  were  prevented  from  signing  the  same,  respectfully 
report  ; 

That  upon  consideration  of  such  resolution  it  is  the  sense 
of  the  Committee  that  this  Convention  has  no  authority  to  grant 
permission  to  such  members  to  affix  their  signatures  to  the  Con- 
stitution of  1885. 

THOMAS  STERLING, 
H.  A.  HUMPHREY, 
A.  J.  BERDAHL, 
H.  W.  EDDY, 
W.  T.  WILLIAMS, 
S.  A.  RAMSEY, 

D.  CORSON, 


LEASE  OP  SCHOOL  LANDS  147 

C.  J.  B.  HARRIS, 
S.  B.  VAN  BUSKIRK, 
of  the  Judiciary  Committee. 

The  Chairman:  What  will  you  do  with  the  further  report 
of  the  Judiciary  Committee  ? 

Mr.  Young:     I  move  that  it  be  adopted. 

Which  motion  prevailed. 

Mr.  Sterling:  Under  the  call  of  business,  introduction  of 
propositions  relating  to  the  Constitution  I  sent  to  the  Clerk's  desk 
a  resolution  providing  for  an  amendment  to  the  Section  but  did 
not  have  an  opportunity  to  call  it  to  the  attention  of  the  members 
and  the  Chair  at  that  time.  I  move  you  that  we  return  to  that 
order  of  business. 

Which  motion  prevailed  and  the  Clerk  read  the  resolution, 
as  follows: 

RESOLVED:  That  the  report  of  the  Committee  on  Education 
and  School  Lands  be  amended  so  that  Section  9  of  Article  5  shall 
read  as  follows: 

SEC.  9.  The  lands  mentioned  in  this  article  may,  under  such 
regulations  as  the  Legislature  may  prescribe,  be  leased  for  periods 
of  not  more  than  five  years,  in  quantities  not  exceeding  one  section 
to  any  one  person  or  company.  All  rents  shall  be  payable  annually 
in  advance,  nor  shall  any  lease  be  valid  until  it  receives  the  ap- 
proval of  the  Governor. 

Mr.  Sterling:  I  move  now  that  the  resolution  be  made  a 
part  of  that  special  order  under  which  the  report  of  the  Committee 
on  Education  and  School  Lands  is  to  be  considered  next  Tuesday. 

The  Chairman:  It  will  be  made  the  special  order  for  next 
Tuesday  unless  objection  is  made. 

Mr.  Hole:  I  think  in  deference  to  the  Committee  that  has 
that  special  work  before  them,  that  this  should  be  referred  to  them, 
and  as  there  is  no  second  to  the  gentleman's  motion,  I  will  move 
you  that  this  be  referred  to  the  Committee  on  Education  and 
School  Lands. 

Which  motion  was  duly  seconded,  and  by  vote  of  the  Con- 
vention, adopted, 

Mr.  Harris:     I  renew  my  motion  to  adjourn. 

Mr.  Clough:  I  sent  a  request  to  the  desk  for  the  old  soldiers 
to  sign  their  names,  their  rank,  company  and  regiment  on  a  slip 
of  paper  and  hand  the  same  to  me.  The  object  of  this  is  to  find 


148  SOUTH  DAKOTA  DEBATES  1889 

out  how  many  members  of  the  Convention  are  veterans;  that 
this  information  may  be  made  a  matter  of  record  and  be  preserved. 

The  Chairman:  The  motion  before  the  House  is  to  adjourn 
and  will  now  be  put. 

The  motion  prevailed  and  the  House  stands  adjourned. 


SEVENTEENTH  DAY. 

Sioux  Falls,  Dak.,  July  20,  1889. 

Two  o'clock  P.  M. 

Convention  re-convened  pursuant  to  adjournment. 

Mr.  Corson,  of  Lawrence,  in  the  Chair. 

Prayer  by  Mr.  Clough,  of  Watertown. 

Our  Heavenly  Father,  as  we  commence  the  labors  of  this  day 
we  desire  to  thank  Thee  for  Thy  preserving  care;  for  Thy  tender 
mercies  toward  us,  for  Thy  Father's  love  that  is  revealed  to  us 
We  now  ask  Thy  blessing  on  this  Convention  here  and  absent; 
upon  the  intricate  work  resting  upon  the  Commission  we  have  sent 
out  to  do.  Grant  Thy  blessing  upon  this  day's  proceedings;  follow 
us  all  the  days  of  our  lives,  and  give  us  an  abundant  entrance  into 
Thy  kingdom,  we  ask  for  Christ's  sake. 

AMEN. 

The  Clerk  read  the  following  communication: 

Sioux  Falls,  Dak.,  July  20,   1889. 
JUDGE  CORSON: — 

Will  you  please  preside  in  the  Convention  during  my  absence? 

A.  J.  EDGERTOX. 

Mr.  Young:     I  move  we  do  now  adjourn. 

Which  motion  prevailed  and  the  Convention  stands  adjourned. 


NINETEENTH  DAY. 

Sioux  Falls,  Dak.,  July  22nd,  1889. 

Two  o'clock  P.  M. 

Convention  re-assembled  pursuant  to  adjournment. 

Mr.  Corson,  of  Lawrence,  presiding. 

The  Chaplain:  We  thank  Thee,  O  God,  for  all  that  Thou  hast 
done  for  us  in  the  past  and  we  ask  Thee  that  Thou  wilt  so  direct 
our  path  and  so  lead  us  out  in  the  way  that  our  paths  will  be  paths 
of  peace  and  our  ways,  ways  of  righteousness,  that  we  shall  do 
great  good  for  ourselves  and  the  commonwealth  that  we  represent. 
Wilt  Thou  go  with  us  and  own  our  efforts  this  day,  we  ask  it  in  the 
name  of  Jesus,  our  Savior. 

AMEN. 

The  Journal  of  the  preceding  day  was  read  and  approved. 
Under  the  order  of  business,  reports  of  Standing  Committees,  the 
Committee  on  County  and  Township  Organization  announced 
their  report  was  ready. 

The  Committee  on  Engrossment  and  Enrollment  sent  to  the 
desk  of  the  Secretary  an  engrossed  copy  of  the  memorial  that  was 
to  be  sent  to  the  President  of  the  United  States,  concerning  school 
lands. 

The  Chairman:  That  will  be  left  until  tomorrow  until  Presi- 
dent Edgerton  returns. 

Mr.  Spooner:  I  move  that  the  report  of  the  Committee  on 
County  and  Township  Organization  be  made  a  special  order  for 
tomorrow. 

Which  motion  prevailed. 

Under  the  order  of  business  announced  by  the  Chair  in  the 
usual  call  of  business  for  the  day,  Presentation  of  Resolutions  and 
Propositions  Relating  to  the  Constitution. 


152  SOUTH  DAKOTA  DEBATES  1889 


Mr.  Goddard:  I  have  a  resolution  and  ask  that  it  be  read 
and  referred  to  a  Committee. 

WHEREAS:  There  has  been  presented  to  this  Convention  some 
evidence  of  an  uncertainty  as  to  where  the  Seventh  Standard 
Parallel  upon  which  the  line  of  Dakota  is  to  be  divided  into  two 
states  is,  and 

WHEREAS:  It  seems  necessary  to  confer  with  the  Consti- 
tutional Convention  of  North  Dakota,  now  in  session  at  Bismarck, 
to  adjust  this  matter  amicably  and  permanently, 

RESOLVED:  That  the  Convention  instruct  the  Commission 
sent  by  this  body  to  Bismarck  to  come  to  the  best  possible  agreement 
with  the  Committee  of  the  North  Dakota  Convention  concerning 
said  boundary  line  and  report  the  same  to  this  body. 

The  Chairman:  It  will  be  referred  to  the  Committee  on  Name, 
Boundary  and  Seat  of  Government,  if  no  objection  is  made.  The 
Chair  hears  no  objection;  it  is  so  referred. 

The  Chairman:  I  will  call  attention  of  the  Convention  to 
the  fact  that  in  the  report  of  the  Committee  on  Compensation  of 
Public  Officers,  there  is  a  slight  error  in  using  the  word  "each"; 
the  report  has  been  adopted  and  it  may  be  necessary  to  reconsider 
the  report  for  the  purpose  of  correcting  that  error;  it  was  copied 
from  an  erroneous  copy  of  the  Constitution  I  suppose;  the  word 
"each"  has  been  inserted  where  it  should  be  omitted. 

Mr.  Spooner:  According  to  the  rules,  must  not  a  motion  to 
re-consider  be  made  the  next  day? 

The  Chairman:     It  would  be  in  time  today,  I  think. 

Mr.  Spooner:  I  move  you,  Mr.  President,  we  consider  that 
motion  whereby  the  Convention  adopted  the  report  of  the  Com- 
mittee on  Compensation  of  Public  Officers. 

The  Chairman:  You  will  notice  on  the  first  page  of  the  pro- 
ceedings of  July  18th  it  occurs  on  the  last  line,  "The  Commissioner 
of  School  and  Public  Lands  shall  each  receive";  of  course  Com- 
missioner of  School  and  Public  Lands  is  one  officer ;  that  word  "each" 
should  not  appear;  it  is  moved  and  seconded  that  the  vote  by 
which  that  report  was  adopted  be  re-considered. 

Which  motion  prevailed. 

Mr.  Clough:  I  move  the  report  be  amended  in  accordance 
with  the  fact  by  striking  out  the  word  "each". 

Mr.  Hartley:     I  call  upon  the  gentleman  to  specify  the  line. 


ROUTINE  153 


The  Chairman:  It  is  the  word  "each"  occurring  in  the  last 
line  of  the  first  page  of  the  printed  Journal  of  July  18th,  in  the 
report  of  the  Committee  on  Compensation  of  Public  Officers. 

The  motion  was  adopted  by  vote  of  the  Convention. 

Mr.  Dickinson :     I  move  the  report  as  amended  be  now  adopted. 

Which  motion  received  a  second  and  duly  prevailed. 

On  motion  the  Convention  adjourned. 


TWENTIETH  DAY. 

Sioux  Falls,  July  23d,  1889. 

Two  o'clock  P.  M. 

Convention  convened  pursuant  to  adjournment,  with  Mr. 
Corson,  of  Lawrence  in  the  Chair. 

Prayer  was  offered  by  Mr.  Matson,  of  Kingsbury  County. 

O  Lord,  our  Heavenly  Father,  we  thank  Thee  today,  for  Thy 
gracious  favor  shown  us  thus  far  in  the  history  of  the  Convention; 
for  as  much  of  life  as  we  are  permitted  to  enjoy  and  for  the  feeling 
of  friendship  and  good  will  which  prevails  among  the  members. 
And  we  thank  Thee  for  the  general  desire  to  know  the  right  in  all 
matters,  and  to  do  justly  in  our  deliberations.  We  pray  at  this 
time  for  a  continuation  of  Thy  blessing;  may  we  not  be  perplexed 
in  our  work  by  any  little  ambitious  natures;  may  we  forget  self; 
we  pray  that  we  may  truly  know  what  is  right  on  all  questions, 
and  do  the  right  fearlessly;  we  pray  that  the  result  of  our  labors 
may  prove  a  lasting  good  to  all  concerned.  Hear  us  at  this  time 
for  the  homes  we  represent ;  for  the  loved  ones  from  whom  we  are 
separated  at  this  time,  and  the  several  interests  we  for  the  present 
have  abandoned.  Guide  us  through  this  day  and  through  the 
remaining  days  of  the  Convention  and  through  the  future  of  our 
lives,  for  Jesus'  sake. 

AMEN. 

Journal  of  the  previous  day  was  read  and  approved. 

The  Chairman:  The  first  order  of  business,  is  Communications 
and  Presentation  of  Petitions. 

Communication  from  the  American  Sabbath  Union  was  pre- 
sented by  Mr.  President,  pro  tern,  as  follows: 

The  American  Sabbath  Union,  whose  office  is  No.  23  Park 
Row,  earnestly  recommend  that  a  provision  should  be  inserted  in 
your  new  Constitution,  protecting  and  encouraging  Sabbath  ob- 
servance, and  perhaps  the  following  form  would  be  acceptable  to 
the  Convention:  "No  work  or  trade  shall  be  carried  on  the 
first  day  or  the  Week,  usually  called  Sunday,  except  such  as  may 
be  strictly  charitable  or  necessary,  and  the  Legislature  shall  pass 
laws  regulating  and  encouraging  the  obesrvance  of  the  Holy 


156  SOUTH  DAKOTA  DEBATES  1889 

Sabbath  by  all  the  people." 

If  the  matter  has  not  already  been  favorably  acted  upon  by 
the  Convention  will  you  not  kindly  take  the  necessary  steps  to  have 
this  or  a  similar  proposition  adopted  by  the  Convention  and  then 
lay  the  Constitution  for  the  new  State  upon  the  sure  foundation  of 
the  divine  work  and  reap  the  gratitude  of  your  own  people  and  those 
of  the  whole  country. 

SIGNED:  ELIOTT  F.   SHEPHERD, 

President  of  the  American  Sabbath  Union. 
U.  S.  MAYOR, 
GEN.  O.  O.  HOWARD, 
of  the  Executive  Committee. 
J.  H.  KNOWLES, 
WILBER.F.  CROFTS, 

Secretary. 

Mr.  Clough:  As  there  is  no  committee  to  which  that  can  go 
I  move  that  it  be  assigned  to  a  special  committee  of  five.  , 

Motion  duly  seconded. 

The  motion  prevailed. 

The  Chairman:  I  will  appoint  as  a  Committee  of  Special 
Reference  on  the  Communication,  Messrs.  Clough,  of  Codington; 
Huntley,  of  Jerauld;  Willis,  of  Aurora;  Wood,  of  Pennington; 
and  Ramsey,  of  Sanborn. 

The  Chairman:  Unfinished  business  of  the  previous  day; 
nothing  I  believe  but  special  orders. 

Reports  from  Standing  Committees  ? 

Congressional  and  Legislative  Apportionment?  No  report 
ready. 

Judiciary?     Report  sent  to  the  desk. 

Schedule?     Not  ready. 

Name,  Boundary  and  Seat  of  Government? 

Mr.  Stroupe:  The  report  is  signed  by  all  but  two  of  the  Com- 
mittee who  are  absent,  and  is  sent  to  the  desk. 

State,  County  and  Municipal  Indebtedness. 

Mr.  Sherwood:     Not  ready. 

Legislative,  McFarland  (Chairman.)     Report  sent  to  desk. 

Education  and  School  Lands?  Coats  (Chairman.)  No  report 
ready. 

Revenue  and  Finance. 

Goddard,  Chairman:     Not  ready. 

Printing?     No  response. 

Expenses  of  the  Convention? 


JUDICIAL  DEPARTMENT  157 

Mr.  Huntley:     Not  ready. 

The  President:  The  Secretary  will  read  these  reports  and 
unless  it  is  the  desire  of  the  Convention,  the  Clerk  will  not  read 
that  portion  of  each  report,  quoting  the  Constitution;  they  are 
printed,  and  you  can  examine  them  more  particularly. 

The  Clerk  reads  the  report  of  the  Committee  on  Judiciary, 
as  follows: 
MR.  PRESIDENT: — 

Your  Committee  on  Judiciary  to  whom  was  referred  Article 
V  of  the  Constitution,  entitled,  "Judicial  Department",  having  had 
the  same  under  consideration  together  with  those  provisions  of 
the  Omnibus  Bill  relating  to  said  department,  beg  leave  to  report 
as  follows: 

FIRST.  That  upon  the  question  of  the  power  of  the  Conven- 
tion to  increase  the  number  of  Judicial  Circuits,  the  Committee, 
after  free  discussion  and  examination,  conclude  that  under  Section 
5  of  said  Omnibus  Bill,  allowing  such  changes  in  the  Constitution 
as  relate  to  the  re-apportionment  of  Judicial  Districts,  such  increase 
by  this  Convention  is  clearly  authorized. 

SECOND.  That  the  Committee  have  likewise  carefully  con- 
sidered the  expediency  and  the  necessity  of  such  increase.  In  the 
older  and  more  thickly  populated  counties  a  large  volume  of  busi- 
ness has  been  long  pending  before  the  courts;  and  new  counties, 
largely  settled  since  the  apportionment  by  the  Convention  of  1885, 
have  added  to  the  litigation  to  be  disposed  of  in  all  the  Circuits; 
and,  from  all  the  information  before  the  Committee  it  is  apparent 
that  the  six  Judicial  Circuits  as  providid  by  the  Constitution  of 
1885  are  inadequate  in  number  for  the  transaction  of  the  business 
pertaining  thereto,  and  that  the  creation  of  county  courts  with 
jurisdiction  as  limited  by  the  Constitution  will  not  afford  the 
required  relief. 

THIRD.  That  in  recommending  an  increase  from  six  to  eight 
Judicial  Circuits,  the  Committee  believes  the  interests  of  justice 
and  economy  will  be  subserved,  and  that  such  is  the  least  increase 
consistent  with  a  proper  administration  of  the  law. 

FOURTH.  That  in  the  re-apportionment  made  by  the  Com- 
mittee care  has  been  taken  that  the  Circuits  shall  be  formed  by 
compact  territory  and  bounded  by  county  lines,  and  that,  having 
reference  to  such  compactness  and  the  amount  of  business  to  be 
done,  your  committee  believe  that  the  apportionment,  as  shown 
by  the  amendment  to  Section  16  of  Article  V  herewith  submitted,, 
is  a  just  and  equitable  apportionment  of  the  State  into  Judicial 
Circuits.  That  such  apportionment  annuls  Section  16  of  Article 
Five,  so  that  the  same  shall  read^as  follows; 

SECTION  16.  Until  otherwise  ordered  by  law  said  circuits, 
shall  be  eight  in -number  and  constituted  as  follows,  viz.: 


158  SOUTH  DAKOTA  DEBATES  1889 


FIRST  CIRCUIT:  The  Counties  of  Union,  Clay,  Yankton, 
Turner,  Bon  Homme,  Hutchinson,  Charles  Mix,  Douglas,  Todd, 
Gregory,  Tripp  and  Meyer. 

SECOND  CIRCUIT:  The  Counties  of  Lincoln,  Minnehaha, 
McCook,  Moody  and  Lake. 

THIRD  CIRCUIT:  The  Counties  of  Brookings,  Kingsbury, 
Deuel,  Hamlin,  Codington,  Clark,  Grant,  Roberts,  Day  and  the 
Whapeton  and  Sisseton  Reservation,  except  such  portion  of  said 
reservation  as  lies  in  Marshall  County. 

FOURTH  CIRCUIT:  The  Counties  of  Sanborn,  Davison,  Aurora, 
Brule,  Buffalo,  Jerauld,  Hanson,  Miner,  Lyman,  Presho,  and 
Pratt. 

FIFTH  CIRCUIT:  The  Counties  of  Beadle,  Spink,  Brown 
and  Marshall. 

SIXTH  CIRCUIT:  The  Counties  of  Hand,  Hyde,  Hughes, 
Stanley,  Sully,  Potter,  Faulk,  Edmunds,  Walworth,  Campbell, 
McPherson,  and  all  that  portion  of  said  State  lying  east  of  the 
Missouri  river  and  not  included  in  any  other  Judicial  Circuit. 

SEVENTH  CIRCUIT:  The  Counties  of  Pennington,  Custer, 
Fall  River,  Shannon,  Washington,  Zeibach,  Sterling,  Nowlin, 
Jackson,  Washabaugh,  and  Lugenbeel. 

EIGHTH  CIRCUIT:  The  Counties  of  Lawrence,  Meade,  Scobey- 
Butte,  Belano,  Pyalt,  Dewey,  Boreman,  Schnasse,  Rinehart,  Mar, 
tin,  Choteau,  Ewing,  Harding,  and  all  that  portion  of  said  State 
west  of  the  Missouri  river  and  north  of  the  Big  Cheyenne  River 
and  the  north  fork  of  the  Cheyenne  river  not  included  in  any  other 
Judicial  Circuit. 

FIFTH:  The  Committee  further  report  amendments  as  fol- 
lows: In  the  first  line  of  Section  38  of  said  Article  V,  insert  the 
word  "South"  before  the  word  "Dakota",  and  in  the  third  line  of  said 
Section  38  insert  the  word  "South"  before  the  word  "Dakota". 
And  we  herewith  report  Article  V  with  the  changes  and  amend- 
ments aforesaid  incorporated  therein  which  changes  and  amend- 
ments are  necessary  to  comply  with  the  provisions  of  the  Omnibus 
Enabling  Act  and  are  authorized  by  the  same,  and  the  Committee 
respectfully  recommend  the  adoption  of  said  Article  as  amended. 
ARTICLE  V. 

JUDICIAL  DEPARTMENT. 

SECTION  1.  The  Judicial  powers  of  the  State,  except  as  in 
this  Constitution  otherwise  provided,  shall  be  vested  in  the  Supreme 
Court,  Circuit  Courts,  County  Courts,  and  Justices  of  the  Peace, 
and  such  other  courts  as  may  be  created  by  law  for  cities  and  in- 
corporated towns. 

SUPREME  COURT. 

SEC.  2.  The  Supreme  Court,  except  as  otherwise  provided 
in  this'  Constitution,  shall  have  appellate  jurisdiction  only,  which 
shall  be  co-extensive  with  the  State,  and  shall  have  a  general  su- 


JUDICIAL  CIRCUIT  159 


perintending  control  over  all  inferior  courts,  under  such  regulations 
and  limitations  as  may  be  prescribed  by  law. 

SEC.  3.  The  Supreme  Court  and  the  Judges  thereof  shall 
have  power  to  issue  writs  of  habeas  corpus.  The  Supreme  Court 
shall  also  have  the  power  to  issue  writs  of  mandamus,  quo  war- 
ranto,  certiorari,  injunction  and  other  original  and  remedial  writs, 
with  authority  to  hear  and  determine  the  same  in  such  cases,  and 
such  regulations  as  may  be  provided  by  law,  provided,  however, 
that  no  jury  trials  shall  be  allowed  in  said  Supreme  Court ,  but ,  in  pro- 
per cases,  questions  of  fact  may  be  sent  by  said  court  to  a  Circuit 
Court  to  a  trial  before  a  jury. 

SEC.  4.  At  least  two  terms  of  the  Supreme  Court  shall  be 
held  each  year  at  the  seat  of  government. 

SEC.  5.  The  Supreme  Court  shall  consist  of  three  Judges,  to 
be  chosen  from  districts  by  qualified  electors  of  the  State  at  large, 
as  hereinafter  provided. 

SEC.  6.  The  number  of  said  Judges  and  Districts  may,  after 
five  years  from  the  admission  of  this  State  under  this  Constitution, 
be  increased  by  law  to  not  exceeding  five. 

SEC.  7.  A  majority  of  the  Judges  of 'the  Supreme  Court 
shall  be  necessary  to  form  a  quorum  or  to  pronounce  a  decision, 
but  one  or  more  of  said  Judges  may  adjourn  the  Court  from  day 
to  day  or  to  a  day  certain. 

SEC.  8.  The  term  of  the  Judges  of  the  Supreme  Court,  who 
shall  be  elected  at  the  first  election  under  this  Constitution,  shall 
be  four  years.  At  all  subsequent  elections  the  term  of  said  Judges 
shall  be  six  years. 

SEC.  9.  The  Judges  of  the  Supreme  Court  shall  by  rule, 
select  from  their  number  a  Presiding  Judge,  who  shall  act  as  such 
for  the  term  prescribed  by  such  rule. 

SEC.  10.  No  person  shall  be  eligible  to  the  office  of  Judge  of 
the  Supreme  Court  unless  he  be  learned  in  the  law,  be  at  least 
thirty  years  of  age,  a  citizen  of  the  United  States,  nor  unless  he 
shall  have  resided  in  this  State  or  Territory  at  least  two  years  next 
preceding  his  election  and  at  the  time  of  his  election  be  a  resident 
of  the  district  from  which  he  is  elected,  but  for  the  purpose  of  re- 
election, no  Judge  shall  be  deemed  to  have  lost  his  residence  in 
the  District  by  reason  of  his  removal  to  the  seat  of  government  in 
the  discharge  of  his  official  duties. 

SEC.  11.  Until  otherwise  provided  by  law,  the  districts  from 
which  the  said  Judges  of  the  Supreme  Court  shall  be  elected,  shall 
be  constituted  as  follows: 

FIRST  DISTRICT:  All  that  portion  of  the  State  lying  west  of 
the  Missouri  river. 

SECOND  DISTRICT:  All  that  portion  of  the  State  lying  east 
of  the  Missouri  river  and  south  of  the  Second  Standard  Parallel. 


160  SOUTH  DAKOTA  DEBATES  1889 

THIRD  DISTRICT:  All  that  portion  of  the  State  lying  east  of 
the  Missouri  river  and  north  of  the  Second  Standard  Parallel. 

SEC.  12.  There  shall  be  a  Clerk  and  also  a  Reporter  of  the 
Supreme  Court,  who  shall  be  appointed  by  the  Judges  thereof, 
and  who  shall  hold  office  during  the  pleasure  of  said  Judges,  and 
whose  duties  and  emoluments  shall  be  prescribed  by  law,  and  by 
the  rules  of  the  Supreme  Court  not  inconsistent  with  law.  The 
Legislature  shall  make  a  provision  for  the  publication  and  dis- 
tribution of  the  decisions  of  the  Supreme  Court,  and  for  the  sale 
of  the  published  volumes  thereof.  No  private  person  or  corpor- 
ation shall  be  allowed  to  secure  any  copyright  to  such  decisions, 
but  if  any  copyrights  are  secured  they  shall  inure  wholly  to  the 
benefit  of  the  State. 

SEC.  13.  The  Governor  shall  have  authority  to  require  the 
opinions  of  the  Judges  of  the  Supreme  Court  upon  important  ques- 
tions of  law  involved  in  the  exercise  of  his  executive  powers  and 
upon  solemn  occasions. 

CIRCUIT  COURTS. 

SEC.  14.  The  Circuits  Courts  shall  have  original  jurisdiction 
of  all  actions  and  causes,  both  at  law  and  in  equity,  and  such  ap- 
pellate jurisdiction  as  may  be  conferred  by  law  and  consistent  with 
this  Constitution;  such  jurisdiction  as  to  value  and  amount  and 
grade  of  offense,  may  be  limited  by  law.  They  and  the  Judges 
thereof  shall  also  have  jurisdiction  and  power  to  issue  writs  of 
habeas  corpus,  mandamus,  quo  warranto,  certiorari  and  other 
original  and  remedial  writs,  with  authority  to  hear  and  determine 
the  same. 

SEC.  IS.  The  State  shall  be  divided  into  judicial  circuits,  in 
each  of  which  there  shall  be  elected  by  the  electors  thereof,  one 
Judge  of  the  Circuit  Court  therein,  whose  term  of  office  shall  be 
four  years. 

SEC.  16.  Until  otherwise  ordered  by  law  said  Circuits  shall 
be  eight  in  number  and  constituted  as  follows,  viz: 

FIRST  CIRCUIT:  The  Counties  of  Union,  Clay,  Yankton, 
Turner,  Bon  Homme,  Hutchinson,  Charles  Mix,  Douglas,  Todd, 
Gregory,  Tripp  and  Meyer. 

SECOND  CIRCUIT:  The  Counties  of  Lincoln,  Minnehaha,  Mo 
Cook,  Moody  and  Lake. 

THIRD  CIRCUIT:  The  Counties  of  Brookings,  Kingsbury, 
Deuel,  Hamlin,  Codington,  Clark,  Grant,  Roberts,  Day  and  the 
Whapeton  and  Sisseton  Reservation,  except  such  portion  of  said 
reservation  as  lies  in  Marshall  County. 

FOURTH  CIRCUIT:  The  Counties  of  Sanborn,  Davison,  Au- 
rora, Brule,  Buffalo,  Jerauld,  Hanson,  Miner,  Lyman,  Presho 
and  Pratt. 

FIFTH  CIRCUIT:  The  Counties  of  Beadle,  Spink,  Brown, 
and  Marshall. 


CIRCUIT  COURT  DISTRICT  161 

SIXTH  CIRCUIT:  The  Counties  of  Hand,  Hyde,  Hughes,  Sully, 
Stanley,  Potter,  Faulk,  Edmunds,  Walworth,  Campbell,  Mc- 
Pherson,  and  all  that  portion  of  said  State  lying  east  of  the  Missouri 
river  and  not  included  in  any  other  judicial  circuit. 

SEVENTH  CIRCUIT:  The  Counties  of  Pennington,  Custer,  Fall 
River,  Shannon,  Washington,  Ziebach,  Sterling,  Nowlin,  Jackson, 
Washabaugh,  Lugenbeel. 

EIGHTH  CIRCUIT:  The  Counties  of  Lawrence,  Meade,  Scobey, 
Butte,  Delano,  Pyatt,  Dewey,  Boreman,  Schnasse,  Rinehart, 
Martin,  Choteau,  Ewing,  Harding,  and  all  that  portion  of  said 
State  west  of  the  Missouri  river  and  north  of  the  Big  Cheyenne 
river  and  the  north  fork  of  the  Cheyenne  river  not  included  in  any 
other  judicial  circuit.  « 

SEC.  17.  The  Legislature  may,  whenever  two-thirds  ot  the 
members  of  each  house  shall  concur  therein,  increase  the  number 
of  judicial  circuits  and  the  judges  thereof,  and  divide  the  State 
into  judicial  circuits  accordingly,  taking  care  that  they  be  formed 
of  compact  territory  and  be  bounded  by  county  lines,  but  such 
increase  of  number  or  change  in  the  boundaries  of  districts  shall 
not  work  the  removal  of  any  judge  from  his  office  during  the  term 
for  which  he  shall  have  been  elected  or  appointed. 

SEC.  18.  Writs  of  error  and  appeals  may  be  allowed  from  the 
decisions  of  the  Circuit  Courts  to  the  Supreme  Court  under  such 
regulations  as  may  be  prescribed  by  law. 

COUNTY  COURTS. 

SEC.  19.  There  shall  be  elected  in  each  organized  county  a 
county  judge  who  shall  be  judge  of  the  county  court  of  said  county, 
whose  term  of  office  shall  be  two  years  until  otherwise  provided 
by  law. 

SEC.  20.  County  Courts  shall  be  courts  of  record  and  shall 
have  original  jurisdiction  in  all  matters  of  probate  guardianship 
and  settlement  of  estates  of  deceased  persons  and  such  other 
criminal  jurisdiction  as  may  be  conferred  by  law,  provided  that 
such  courts  shall  not  have  jurisdiction  in  any  case  where  the  debt, 
damage,  claim  or  value  of  the  property  involved  shall  exceed  one 
thousand  dollars,  except  in  matters  of  probate  guardianship  and 
the  estates  of  deceased  persons.  Writs  of  error  and  appeal  may 
be  allowed  from  county  to  circuit  courts,  or  to  the  Supreme  Court  in 
such  cases  and  in  such  manner  as  may  be  prescribed  by  law,  pro- 
vided that  no  appeal  or  writ  of  error  shall  be  allowed  to  the  circuit 
court  from  any  judgment  rendered  upon  an  appeal  from  a  justice 
of  the  peace  or  police  magistrate  for  cities  and  towns. 

SEC.  21.  The  County  Court  shall  not  have  jurisdiction  in 
cases  of  felony,  nor  shall  criminal  cases  therein  be  prosecuted  by 
indictment  ;but  they  may  have  such  jurisdiction  in  criminal  matters 
not  of  the  grade  of  felony,  as  the  Legislature  may  prescribe,  and 


162  SOUTH  DAKOTA  DEBATES,  1889. 

the  prosecutions  therein  may  be  by  information  or  otherwise  as 
the  Legislature  may  provide. 

JUSTICES    OF    THE    PEACE. 

SEC.  22.  Justices  of  the  Peace  shall  have  such  jurisdiction  as 
maybe  conferred  by  law,  but  they  shall  not  have  jurisdiction  of  any 
case  wherein  the  value  of  the  property  or  the  amount  in  contro- 
versy exceeds  the  sum  of  one  hundred  dollars,  or  where  the  boundar- 
ies or  title  of  real  property  shall  be  called  in  question. 

POLICE   MAGISTRATE. 

SEC.  23.  The  Legislature  shall  have  power  to  provide  for 
creating  such  police  magistrates  for  cities  and  towns  as  may  be 
deemed  from  time  to  time  necessary,  who  shall  have  jurisdiction  of 
all  cases  arising  under  the  ordinances  of  such  cities  and  towns  re- 
spectively and  such  police  magistrates  may  also  be  constituted  ex- 
officio  justice  of  the  peace  for  their  respective  counties. 
STATE'S  ATTORNEY. 

SEC.  24.  The  Legislature  shall  have  power  to  provide  for 
State's  Attorney's  and  to  prescribe  their  duties  and*  fix  their  com- 
pensation; but  no  person  shall  be  eligible  to  the  office  of  Attorney  • 
General  or  State's  Attorney  who  shall  not  at  the  time  of  his  election 
be  at  least  twenty-five  years  of  age  and  possess  all  the  other  quali- 
fications for  Judges  of  the  Circuit  Courts  as  prescribed  in  this 
article. 

MISCELLANEOUS. 

SEC.  25.  No  person  shall  be  eligible  to  the  office  of  Judge 
of  the  Circuit  Court  or  County  Courts  unless  he  be  learned  in  the 
law,  be  at  least  twenty-five  years  of  age,  and  a  citizen  of  the  United 
States;  nor  unless  he  shall  have  resided  in  this  State  or  Territory  at 
least  one  year  next  preceding  his  election,  and  at  the  time  of  his 
election  be  a  resident  of  the  county  or  circuit, "as  the  case  may  be, 
for  which  he  is  elected. 

SEC.  26.  The  Judges  of  the  Supreme  Court,  Circuit  Courts 
and  County  Courts  shall  be  chosen  at  the  first  election  held  under 
the  provisions  of  this  Constitution,  and  thereafter  as  provided  by 
law,  and  the  Legislature  may  provide  for  the  election  of  such  officers 
on  a  different  day  from  that  on  which  an  election  is  held  for  any 
other  purpose,  and  may,  for  the  purpose  of  making  such  provision, 
;xtend  or  abridge  the  term  of  office  for  any  of  such  judges  then 
holding,  but  net  in  any  case  more  than  six  months.  The  term  of 
office  of  all  judges  of  Circuit  courts,  elected  in  the  several  judicial 
districts  throughout  the  State  shall  expire  on  the  same  day. 

SEC.  27.  The  time  of  holding  courts  within  said  judicial  cir- 
cuits and  counties  shall  be  as  provided  by  law ;  but  at  least  one  term 
ic  circuit  court  shall  be  held  annually  in  each  organized  count  v 

the  legislature  shall  make  provision  for  attaching  un-organized 
Bounties  or  territory  to  organized  counties  for  judicial  purposes 


SUPREME  AND  CIVIL  JUDGES  163 

SEC.  28.  Special  terms  of  said  courts  may  be  held  under  such 
regulations  as  may.  be  provided  by  law. 

SEC.  29.  The  judges  of  the  circuit  courts  may  hold  courts 
in  other  circuits  than  their  own,  under  such  regulations  as  may  be 
prescribed  by  law. 

SEC.  30.  The  judges  of  the  Supreme  Court,  circuit  court  and 
county  courts  shall  each  receive  such  salary  as  may  be  provided 
by  law,  consistent  with  this  Constitution,  and  no  such  judge  shall 
receive  any  compensation,  perquisite  or  emoluments  for  or  on  ac- 
count of  his  office  in  an}'  form  whatever,  except  such  salary;  pro- 
vided, that  county  judges  may  accept  and  receive  such  fees  as  may 
be  allowed  under  the  land  laws  of  the  United  St'ates. 

SEC.  31.  No  judge  of  the  Supreme  Court  or  circuit  court 
shall  act  as  attorney  or  counsellor  at  law,,  nor  shall  any  county  judge 
act  as  attorney  or  counsellor  at  law  in  any  case  which  is  or  may 
be  brought  into  his  court  or  which  may  be  appealed  therefrom. 

SEC.  32.  There  shall  be  a  Clerk  of  the  Circuit  Court  in  each 
organized  county,  who  shall  also  be  Clerk  of  the  County  Court, 
and  who  shall  be  elected  by  the  qualified  electors  of  such  county. 
The  duties  and  compensation  of  said  Clerk  shall  be  as  provided  by 
law  and  regulated  by  the  rules  of  the  court  consistent  with  the 
provisions  of  1;; 

SEC.  33.  Until  the  Legislature  shall  provide  by  law  for  fixing 
the  terms  of  courts,  the  Judges  of  the  Supreme,  Circuit  and  County 
Courts,  respectively,  shall  fix  the  terms  thereof. 

SKC.  34.  All  laws  relating  to  courts  shall  be  general  and  of 
uniform  operation  throughout  the  State,  and  the  organization,- 
jurisdiction,  power,  proceedings  and  practice  of  all  the  courts  of 
the  same  class  or  grade,  so  far  as  regulated  by  law,  and  the  force  and 
effect  of  such  of  the  proceedings,  judgments  and  decrees  of  such 
courts  severally  shall  be  uniform,  provided,  however,  that  the  ' 
lature  may  classify  the  county  courts  according  to  the  population 
of  the  respective  counties  and  fix  the  jurisdiction  and  salary  of  the 
judges  thereof  accordingly. 

SKC.  35.  Xo  judge  of  the  Supreme  or  Circuit  Courts  shall 
1>e  elected  to  any  ot  her  than  a  judicial  office,  or  be  eligible  thereto, 
during  the  term  for  which  he  was  elected  such  judge.  AH 
for  either  of  them  during  sueh  term  for  any  elective  office,  excepl 
that  of  Judge  of  the  Supreme  Court,  Circuit  Court  or  County  Court, 
given  by  the  Legislature  or  the  people,  shall  be  void. 

SEC.  36.  All  judges  or  other  officers  of  the  Supreme,  Circuit 
or  County  Courts  provided  for  in  this  article  shall  hold  their  offices 
until  their  succ  ivcly  are  elected  or  appointed  and 

qualified. 

SKC.  37.      All  officers  provided  for  in  this  article  shall  re 
tively  reside  in  the  district  ,  count  v.  precinct,  city  or  town  for  which 
they  may  be  elected  or  appointed.     Vacancies  in  the  elective  of- 


164  SOUTH  DAKOTA  DEBATES  1889 

fices  provided  for  in  this  article  shall  be  filled  by  appointment  until 
the  next  general  election,  as  follows:  All  judges  of  the  Supreme, 
Circuit  and  County  Courts,  by  the  Governor.  All  other  judicial 
and  other  officers  by  the  County  Board  of  the  county  where  the 
vacancy  occurs;  in  cases  of  police  magistrates,  by  the  municipality. 
SEC.  38.  All  processes  shall  run  in  the  name  of  the  "State 
of  South  Dakota".  All  prosecutions  shall  be  carried  on  in  the 
name  of  and  by  authority  of  the  "State  of  South  Dakota." 

THOS.  STERLING,  Chmn. 
H.  A.  HUMPHREY, 
CHAUNCEY  L.  WOOD, 
SAMUEL  A.  RAMSEY, 
H.  W.  EDDY. 
CARL    SHERWOOD, 
S.  B.  VAN  BUSKIRK, 
G.  F.  FELLOWS, 
D.  CORSON. 

Mr.  Van  Buskirk:  I  move  that  that  be  made  a  special  order 
for  Thursday;  the  reason  that  I  make  it  at  that  time  is,  because 
the  report  will  not  be  printed  and  in  the  possession  of  the  members 
tomorrow  morning.  (Motion  seconded.) 

Mr.  Cooper:  I  move  an  amendment,  that  it  be  made  the 
special  order  for  tomorrow.  (Amendment  seconded.) 

Mr.  Davies:  Have  we  not  more  work  on  hand  now  than 
we  can  do? 

Mr.  Van  Buskirk:  I  desire  to  suggest,  I  believe  the  rule  is 
that  where  time  is  contained  in  a  motion,  the  longest  time  is  put 
first. 

The  Chairman:  The  gentleman  is  right;  those  favoring  the 
postponing  the  consideration  of  this  report  until  Thursday  will 
signify  it  by  saying  aye.  The  Chair  is  in  doubt. 

The  motion  was  lost  by  a  rising  vote  of  twenty-seven  ayes 
to  twenty-two  nays. 

The  President:  Now  the  amendment  will  be  in  order  that  it 
be  postponed  until  tomorrow  afternoon. 

Mr.  Atkinson:  I  move  as  a  substitute  that  it  be  made  a 
special  order  for  Wednesday  afternoon. 

A  Voice:     That  is  tomorrow!      (Laughter). 
The  amendment  prevailed,  and  the  consideration  of  the  report 
was  postponed  until  Wednesday. 

The  Clerk  reads  the  report  of  the  Committee  on  Name,  Boun- 
dary and  Seat  of  Government,  as  follows: 


NAME  AND  BOUNDARY  165 

Sioux  Falls,  July   23,    1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Name,  Boundaries  and  Seat  of  Govern- 
ment, to  whom  was  referred  Article  I  of  the  Sioux  Falls  Consti- 
tution, have  considered  the  same  and  respectfully  recommend  that 
Section  1  of  said  Article  I  be  amended  by  inserting  the  word 
"South"  before  the  word  Dakota, 

That  Section  2  of  said  Article  I  be  amended  by  inserting  the 
word  "South"  before  the  word  Dakota,  and  by  striking  out  the 
words  "Forty-sixth  parallel  of  north  latitude;  thence  west  along 
the  Forty-sixth  Parallel  of  north  latitude,"  and  in  lieu  thereof 
insert  the  words,  "Seventh  Standard  Parallel;  thence  west  on  the 
line  of  the  Seventh  Standard  Parallel  produced  due  west;"  and 
therefore  respectfully  recommend  the  following  as  Article  I  of  the 
Constitution,  the  same  being  in  accordance  with  the  "Omnibus 
Bill." 

ARTICLE  I. 

NAME    AND    BOUNDARY. 

SECTION  1.  The  name  of  the  State  shall  be  South  Dakota. 
SEC.  2.  The  boundaries  of  the  State  of  South  Dakota  shall 
be  as  follows:  Beginning  at  the  point  of  intersection  of  the  western 
boundary  line  of  the  State  of  Minnesota  with  the  northern  boundary 
line  of  the  State  of  Iowa,  and  running  thence  northerly  along  the 
western  boundary  line  of  the  State  of  Minnesota,  to  its  intersection 
with  the  Seventh  Standard  Parallel;  thence  west  on  the  line  of 
the  Seventh  Standard  Parallel  produced  due  west  to  its  intersec- 
tion with  the  Twenty-seventh  Meridian  of  longitude  west  from 
Washington  thence  south  on  the  Twenty-seventh  Meridian  of 
longitude  west  from  Washington  to  its  intersection  with  the 
northern  boundary  line  of  the  State  of  Nebraska;  thence  easterly 
along  the  northern  boundary  line  of  the  State  of  Nebraska  to  its 
intersection  with  the  western  boundary  line  of  the  State  of  Iowa; 
thence  northerly  along  the  western  boundary  line  of  the  State  of 
Iowa  to  its  intersection  with  the  -northern  boundary  line  'of  the 
State  of  Iowa;  thence  east  along  the  northern  boundary  line  of 
the  State  of  Iowa  to  the  place  of  beginning. 

Respectfully  submitted, 

M.  P.  STROUPE,  Chmn. 
S.  A.  WHEELER, 
W.  T.  WILLIAMS, 
E.  G.  EDGERTON, 
WM.  VAN  EPS. 

Mr.  Davies:       I  move  that  this  report  be  made  a  special  sub- 
ject for  consideration  tomorrow  at  the  afternoon  session. 
Motion  seconded. 
Motion  prevailed. 


166 


SOUTH  DAKOTA  DEBATES  1889 


The  Clerk  read  the  second  report  of  the  Committee  on  Name, 
Boundary  and  Seat  of  Government,  as  follows: 

SEC.  3.  Should  no  place  voted  for  at  said  election  have  a 
majority  of  all  votes  cast  upon  this  question,  the  Governor  shall 
issue  his  proclamation  for  an  election  to  be  held  in  the  same  manner 
at  the  next  general  election  to  choose  between  the  two  places 
having  received  the  highest  number  of  votes  cast  at  the  first  elec- 
tion on  this  question.  This  election  shall  be  conducted  in  the  same 
manner  as  the  first  -election  for  the  permanent  seat  of  government , 
and  the  place  receiving  the  majority  of  all  votes  cast  upon  this 
question  shall  be  the  permanent  seat  of  government. 

M.  P.  STROUPE,  Chmn. 
S.  A.  WHEELER, 
E.  G.  EDGERTON, 
W.  T.  WILLIAMS, 
WM.  VAN  EPS. 

Mr.   Stroupe:     I  move  that  the  consideration,  of  this  report 
.be  made  the  special  order  for  tomorrow. 
Which  motion  prevailed. 

The  President;  I  think  that  the  report  of  the  Legislative 
Committee  is  not  in  accordance  with  the  rule ;  if  there  is  no  objection, 
I  will  refer  it  back  to  the  Committee  to  report  it  in  form  in  which 
the  rule  provides.  There  being  no  objection,  it  will  be  so  referred. 
The  President:  There  being  no  business  under  the  call  of 
Report  of  Select  Committees,  or  Consideration  of  Reports  of  Se- 
lect Committees  or  Presentation  of  Resolutions  or  Propositions 
Relating  to  the  Constitution,  we  will  proceed  to  the  special  order 
for  the  day;  the  first  one  is  the  Report  of  the  Committee  on  Im- 
peachment and  Removal  from  Office.  The  Clerk  will  read  that 
report. 

Sioux  Falls,  Dak.,  July  19,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Legislative  to  whom  was  referred  Article 
XVI,  entitled,  "Impeachment  and  Removal  From  Office",  have 
considered  the  same  and  have  compared  said  Article  XVI  with 
the  Sioux  Falls  Constitution  and  the  Act  of  Congress  known  as  the 
"Omnibus  Bill",  and  have  instructed  me  to  report  the  following 
as  Article  XVI  of  the  Constitution  and  that  the  same  is  in  accor- 
dance with  the  Sioux  Falls  Constitution  and  the  change  thereto 
authorized  by  the  Omnibus  Bill. 

ARTICLE  XVI. 

SECTION  1.  The  House  of  Representatives  shall  have  the  sole 
power  of  impeachment.  The  concurrence  of  a  majority  of  all 
members  elected  shall  be  necessary  to  an  impeachment. 


IMPEACHMENTS  167 


SEC.  2.  All  impeachments  shall  be  tried  by  the  Senate.  When 
sitting  for  that  purpose  the  Senators  shall  be  upon  oath  or  affirma- 
tion to  do  justice  according  to  law  and  evidence.  No  person  shall 
be  convicted  without  the  concurrence  of  two-thirds  of  the  members 
elected.  When  the  Governor  or  Lieutenant  Governor  is  on  trial 
the  presiding  judge  of  the  Supreme  Court  shall  preside. 

SEC.  3.  The  Governor  and  other  State  and  Judicial  officers 
except  County  Judges,  Justices  of  the  Peace  and  Police  Magis- 
trates, shall  be  liable  to  impeachment  for  drunkeness,  crimes,  cor- 
rupt conduct  or  malfeasance  or  misdemeanor  in  office,  but  judgment 
in  such  cases  shall  not  extend  further  than  to  removal  from  office 
and  disqualification  to  hold  any  office  of  trust  or  profit  under  the 
State.  The  person  accused,  whether  convicted  or  acquitted,  shall 
nevertheless  be  liable  to  indictment,  trial  judgment  and  punish- 
ment according  to  law. 

SEC.  4.  All  officers  not  liable  to  impeachment  shall  be  subject 
to  removal  for  misconduct,  malfeasance,  crime  or  misdemeanor 
in  office  or  for  drunkenness  or  gross  incompetency  in  such  manner 
as  may  be  provided  by  law. 

SEC.  5.  No  officer  shall  exercise  the  duties  of  his  office  after 
he  shall  have  been  impeached  and  before  his  acquittal. 

SEC.  6.  On  trial  of  impeachment  against  the  Governor  the 
Lieutenant  Governor  shall  not  act  as  a  member  of  the  Court. 

SEC.  7.  No  person  shall  be  tried  on  impeachment  before  he 
shall  have  been  served  with  a  copy  thereof  at  least  twenty  days 
previous  to  the  day  set  for  trial. 

SEC.  8.  No  person  shall  be  liable  to  impeachment  twice  for 
the  same  offense. 

A.    B.    McFARLAND, 

Chairman. 
S.  A.  RAMSEY, 
WM.  COOK, 
R.  F.  Lyon. 

The  President:  What  is  the  pleasure  of  the  Convention  with 
regard  to  the  report  of  the  Committee  on  Impeachment? 

Mr.  Davies:  I  move  that  we  adopt  the  report.  (Motion 
seconded.) 

Mr.  Hole:  I  wish  again  to  suggest  a  point  that  was  raised 
last  week  sometime,  and  that  is,  whether  these  reports  have  been 
compared  with  the  Constitution  itself;  if  they  have  not,  I  am  op- 
posed to  the  motion ;  I  have  noticed  a  great  many  errors  have  crept 
in ;  I  find  the  compared  work  of  the  Committee  is  very  little  better 
than  the  book  they  compared  them  with;  sometimes  not  so  good; 
it  is  well  known  by  the  members  of  the  Convention  that  there  are 
many  mistakes,  and  if  these  are  compared  with  the  mistakes,  the 


168  SOUTH  DAKOTA  DEBATES  1889 

second  comparison  is  worse  than  the  first-  I  think  it  is  improper 
that  these  be  reported  as  having  been  compared  unless  having 
been  compared  with  the  Constitution,  not  with  the  garbled  copies. 

Mr.  Huntley:  I  understand  it  is  the  duty  of  the  Committee 
on  Phraseology  and  Arrangement  to  compare  every  report  with 
the  copy  which  is  in  their  hands  and  if  there  is  any  departure  from 
that,  it  is  part  of  their  duty  to  make  any  such  corrections  of  mis- 
takes as  they  may  find. 

Mr.  Hole:  Then  why  in  the  name  of  honesty,  is  not  the 
report,  so  reported;  why  do  they  compare  them  with  the  garbled 
copies  and  find  that  they  compare  favorably  with  them?  We  are 
stultifying  ourselves  in  making  these  reports.  I  am  objecting  to 
the  reports  being  made  as  having  been  compared  with  the  original 
and  found  correct.  I  object. 

Mr.  Willis:  This  'Convention  proceeds  upon  the  assumption 
that  these  committees  are  honest.  If  these  committees  have  not 
made  these  comparisons  they  ought  to  report. 

Mr.  Stoddard:  The  way  I  understand  it,  these  so-called 
articles  constitute  the  Constitution  itself,  of  1885.  I  do  not  see 
any  necessity,  or  any  sense  of  each  report  coming  in  in  this  way; 
we  have  got  only  to  compare  it  and  find  it  in  conformity  with  the 
Omnibus  Bill  and  also  with  the  Sioux  Falls  Constitution;  we  sup- 
pose that  these  articles  are  the  Constitution  itself;  it  is  supposed 
that  these  printed  copies  constitute  the  Constitution  and  we  have 
not  each  one  taken  the  time  to  look  through  the  engrossed  copy; 
that  is  in  the  hands  of  the  President,  we  have  not  had  an  oppor- 
tunity, we  remember  too,  undoubtedly  it  will  go  to  the  Committee 
on  Phraseology  and  it  will  be  looked  after  there ;  all  that  we  report 
is  that  we  find  such  and  such  an  article  a  part  of  the  Constitution 
and  then  it  goes  to  the  other  committees. 

Mr.  Matson:  I  suggest  we  are  becoming  a  little  too  critical; 
I  do  not  understand  that  we,  any  of  us,  have  seen  the  copy  of  the 
original  Constitution,  or  have  had  it  before  us  when  we  voted  upon 
the  Sioux  Falls  Constitution. 

Mr.  Young:  I  do  not  think  that  the  gentleman  was  talking 
advisedly,  that  objected,  when  he  used  the  expression,  "garbled 
copy"  of  the  Constitution.  These  committees  were  comparing 
these  reports  by  the  corrected  copy,  made  by  the  special  Committee 
on  Errata.  I  do  not  think  he  spoke  authoritatively  when  he  says 


LIMITATIONS  OF  ENABLING  ACT  169 

these  reports  have  been  compared  with  garbled  copies;  they  have 
been  compared  with  the  corrected  copy,  I  think  in  every  instance. 

Mr.  Hole:  I  do  not  want  to  raise  a  breeze  on  this;  I  merely 
wanted  to  call  attention  to  what  seemed  to  me  a  serious  matter. 
We  were  making  reports  and  certifying  that  these  are  correct  and 
there  has  not  been  one  report  yet  that  has  gone  in,  or  but  very  few 
as  I  am  informed  by  the  clerks  but  what  have  been  found  to  be 
wrong  though  all  certified  by  the  Chairman  of  the  Committee.  That 
has  been  shown  by  every  report  here,  and  that  every  one  of  them, 
or  nearly  all  have  been  found  to  be  wrong.  Our  Committee  have 
not  made  a  report  and  we  have  not  been  in  a  position  to  stultify 
ourselves  at  all :  I  merely  want  to  raise  this  question ;  we  ought  to 
correct  that  certificate  that  is  made, — the  report  that  is  made;  I 
think  these  will  have  to  be  compared  with  the  original  copy ;  must 
be.  I  think  the  record  should  be  made  to  agree  with  the  facts. 

Mr.  Hartley:  I  call  attention  to  the  next  article;  Article 
VII  is  reported  as  being  made  correct,  while  it  is  not;  the  very  next 
Article  reported  by  the  Committee  as  being  correct  is  not  correct. 
That  is  the  reason  that  we  call  attention  to  the  fact  that  they  are 
reporting  matters  which  are  not  correct;  we  are  making  up  a  record 
that  is  not  correct.  There  is  one  copy  which  reads  one  way,  and 
the  other  printed  one  which  reads  differently ;  some  reports  follow 
one  and  some  reports  follow  another;  in  many  cases  they  are  not 
following  what  is  the  Constitution.  Judge  Edgerton  has  either 
refused  or  failed  to  produce  the  original  copy  here.  I  think  we 
are  entitled  to  the  possession  of  the  Constitution  we  are  working 
on;  we  ought  to  have  it  here;  so  that  when  any  of  these  questions 
arise  we  can  turn  to  it  immediately.  With  regard  to  what  the 
gentleman  from  Lake  county  (Mr.  Young)  said  in  law,  a  copy  that 
is  a  copy  would  not  be  received  in  court  and  the  fact  that  they 
compared  the  report  that  they  are  producing  here  with  another 
copy  is  no  evidence  that  it  is  correct.  We  should  have  the  Consti- 
tution here  every  day  through  working  hours  now. 

Mr.  Sterling:  I  hardly  think  that  any  of  the  errors  that  may 
be  found  in  any  of  these  copies  are  any  more  than  what  may  IK- 
termed  clerical  or  typographical  errors.  I  think  these  errors  omu- 
properly  under  the  notice  of  the  Committee  on  Phraseology  and 
Arrangement  and  whether  the  different  Committees  compare  their 
reports  with  one  copy  or  another  copy  of  the  Constitution,  I  think 


170  SOUTH  DAKOTA  DEBATES  1889 

it  will  be  found  to  be  substantially  correct.  And  the  only  inac- 
curacies will  be  in  the  nature  of  typographical  or  clerical  errors 
and  it  is  peculiarly  the  business  of  that  Committee  to  correct  errors 
of  that  kind.  They  will  not  find  those  errors  alone  in  these  copies 
which  we  use ;  if  I  understand  it  rightly  they  will  be  found  in  the 
original  Constitution  itself;  I  think  the  duties  of  that  Committee 
will  extend  to  what  is  plainly  a  clerical  error  and  that  they  will 
not  submit  their  report  until  they  have  made  such  comparison. 
I  think  these  reports  must  be  taken  as  substantially  correct,  and 
that  when  the  committee  certifies  that  they  have  compared  them 
and  say  these  copies  are  copies  of  the  different  articles  that  they 
have  examined  that  we  must  so  take  it,  until  the  Committee  on 
Arrangement  and  Phraseology  take  it  and  pass  upon  the  simple 
clerical  errors. 

Mr.  Hartley:  I  think  after  we  have  called  the  attention  of 
the  Committees  to  it  that  they  have  acknowledged  that  they  have 
made  errors  and  used  copies  that  were  not  correct. 

(Calls  of  question  from  different  portions  of  the  house.) 

The  motion  reaching  a  vote  was  adopted  and  the  report  of  the 
Committee  on  Impeachment  and  Removal  from  Office  was  declared 
adopted. 

The  Chairman:  I  will  now  state  for  the  information  of  the 
Convention,  I  have  been  unable  to  get  to  work  with  the  Committee 
-but  made  arrangements  this  morning  by  which  the  Committee 
on  Arrangement  and  Phraseology  will  take  these  reports  and 
compare  them  with  the  original  Constitution  and  see  if  there  are 
any  errors ;  as  soon  as  Judge  Edgerton  returns  and  we  have  access 
to  the  original  Constitution,  that  Committee  will  commence  its 
work;  I  presume  it  will  be  able  to  do  so  tomorrow;  I  don't  know 
when  the  Judge  expects  to  return. 

The  Chairman:  The  next  business  to  come  before  the. Con- 
vention will  be  the  consideration  of  a  report  of  the  Committee  on 
Elections  and  Right  of  Suffrage ;  there  is  a  little  error  in  that  report ; 
it  calls  the  attention  of  the  Convention  to  the  fact  that  there  is 
apparently  a  clerical  error  in  Section  9.  I  will  state  to  the  members 
of  the  Convention  that  if  they  have  not  the  printed  Journal  of  the 
16th  day's  proceedings  before  them,  that  we  have  extra  copies 
here. 

Mr.   Fellows:     I  move  that  the  report  of  the  Committee  be 


RIGHT  TO  VOTE  171 


amended  by  putting  the  word  "school"  after  the  word  "for"  and 
before  the  word  "purposes"  as  found  in  the  third  line  from  the 
bottom  of  page  three  of  the  16th  day's  proceedings. 

The  Clerk  reads  report  of  Committee  on  Elections  and  Right 
of  Suffrage. 
MR.  PRESIDENT: — 

The  Committee  to  whom  was  referred  Article  VII,  entitled 
"Election  and  Right  of  Suffrage",  respectfully  report,  that  we  find 
the  same  in  conformity  with  the  Enabling  Act,  and  recommend 
that  no  alterations  be  made. 

ARTICLE  VIL 

ELECTIONS  AND  RIGHT  OF  SUFFRAGE. 

SECTION  1.  Every  male  person  resident  of  this  State  who 
shall  be  of  the  age  of  twenty-one  years  and  upwards,  not  otherwise 
disqualified,  belonging  to  either  of  the  following  classes,  who  shall 
be  a  qualified  elector  under  the  laws  of  the  Territory  of  Dakota  at 
the  date  of  the  ratification  of  this  Constitution  by  the  people,  or 
who  shall  have  resided  in  the  United  States  one  year,  in  this  State 
six  months,  in  the  county  thirty  days  and  in  the  election  precinct 
where  he  offers  his  vote  ten  days  next  preceding  any  election,  shall 
be  deemed  a  qualified  elector  at  such  election. 

FIRST:     Citizens  of  the  United  States. 

SECOND:  Persons  of  foreign  birth  who  shall  have  declared 
their  intention  to  become  citizens  conformably  to  the  laws  of  the 
United  States  upon  the  subject  of  naturalization. 

SEC.  2.  The  Legislature  shall  at  its  first  session  after  the 
admission  of  the  "State  into  the  Union,  submit  to  a  vote  of  the 
electors  of  the  State  the  following  question  to  be  voted  upon  at 
the  next  general  election  held  thereafter,  namely:  "Shall  the 
word  'male'  be  stricken  from  the  article  of  the  Constitution  relating 
to  election  and  the  right  of  suffrage."  If  a  majority  of  the  votes  cast 
upon  that  question  are  in  favor  of  striking  out  the  wrord  "male", 
it  shall  be  stricken  out  and  there  shall  thereafter  be  no  distinction 
between  males  and  females  in  the  exercise  of  the  right  of  suffrage 
at  any  election  in  this  State. 

SEC.  3.  All  votes  shall  be  by  ballot,  but  the  Legislature 
may  provide  for  numbering  ballots  for  the  purpose  of  preventing 
and  detecting  fraud. 

SEC.  4.     All  general  elections  shall  be  biennial. 

SEC.  5.  Electors  shall  in  all  cases  except  treason,  felony  or 
breach  of  peace,  be  privileged  from  arrest  during  their  attendance 
at  elections  and  in  going  to  and  returning  from  the  same.  And 
no  elector  shall  be  obliged  to  do  military  duty  on  the  days  of  elec- 
tions, except  in  time  of  war  or  public  danger. 

SEC.  6.  No  elector  shall  be  deemed  to  have  lost  his  residence 
in  this  State  by  reason  of  his  absence  on  business  of  the  United 


172  SOUTH  DAKOTA  DEBATES  1889 

States  or  of  this  State,  or  in  the  military  or  naval  service  of  the 
United  States. 

SEC.  7.  No  soldier,  seaman  or  marine  in  the  army  or  navy 
of  the  United  States  shall  be  deemed  a  resident  of  this  State  in 
consequence  of  being  stationed  therein. 

SEC.  8.  No  person  under  guardianship,  non  compos  mentis 
or  insane,  shall  be  qualified  to  vote  at  any  election,  nor  shall  any 
person  convicted  of  treason  or  felony  be  qualified  to  vote  at  any 
election  unless  restored  to  civil  rights. 

SEC.  9.  Any  woman  having  the  qualifications  enumerated 
in  Section  1  of  this  article,  as  to  age,  residence,  and  citizenship, 
and  including  those  now  qualified  by  the  laws  of  the  Territory, 
may  vote  at  any  election  held  solely  for  school  purposes,  and  may 
hold  any  office  in  this  State,  except  as  otherwise  provided  for 
in  this  Constitution. 

WM.  STODDARD, 
WM.  COOK, 
C.  R.  WESCOTT. 
JOHN  SCOLLARD, 
J.  F.  WHITLOCK, 
HARRY  T.  CRAIG. 

Which  motion  prevailed. 

The  Chairman:  The  question  now  recurrs  upon  the  question 
to  adopt  the  report  of  the  Committee  on  Elections  and  Right  of 
Suffrage  as  amended. 

Which  motion  prevailed  and  the  report  of  said  Committee 
was  declared  adopted. 

The  Chairman:  The  next  report  is  a  report  of  the  Committee 
on  Federal  Relations  and  Ordinance. 

The  Clerk  read'said  report  as  follows: 
MR.  PRESIDENT: — 

Your  Committee  on  Federal  Relations,  to  which  the  proposi- 
tion or  resolution  presented  by  Mr.  Boucher,  relating  to  compact 
with  the  United  States,  was  referred,  would  respectfully  report 
that  we  have  had  the  same  under  consideration  and  have  decided 
to  report  herewith  "An  Ordinance  irrevocable  without  the  consent 
of  the  United  States  and  the  people  of  this  State,  relating  to  Re- 
ligious Toleration,  Public  Lands,  Taxation  of  Lands,  Debts  of  the 
Territory  of  Dakota  and  Public  Schools",  and  would  recommend 
the  passage  of  said  Ordinance. 

Your  Committee  would  further  report  that  we  have  had  under 
consideration  Article  XXII  of  the  Sioux  Falls  Constitution  and 
find  the  same  is  defective  because  it  does  not  contain  all  the  por- 
visions  required  by  the  Omnibus  bill  and  we  would  therefore  recom- 
mend that  the  said  Article  XXII  be  stricken  out  of  the  Constitution. 


COMPACT  WITH  UNITED  STATES  173 

We  would  further  report  that  the  said  ordinance  contains  all 
the  provisions  of  said  Article  XXII  and  such  additional  provisions, 
not  contained  in  said  Article  XXII  as  are  required  by  the  Omnibus 
Bill,  so  called,  or  Enabling  Act. 
AN  ORDINANCE,  irrevocable  without  the  consent  of  the  United 

States   and  the   people  of  this   State,   relating  to    Religious 

Toleration,   Public   Lands,  Taxation  of  Lands,  Debts  of  the 

Territory  of  Dakota  and  Public  Schools. 

Be  it  ordained  by  the  Constitutional  Convention  of  the  State 
of  South  Dakota: 

FIRST:  That  perfect  toleration  of  religious  sentiment  shall 
be  secured,  and  that  no  inhabitant  of  this  State  shall  ever  be  mo- 
lested in  person  or  property  on  account  of  his  or  her  mode  of  re- 
ligious worship. 

SECOND:  That  the  people  inhabiting  this  State  do  agree 
and  declare  that  they  forever  disclaim  all  right  and  title  to  the 
unappropriated  public  lands  lying  within  the  boundaries  thereof, 
and  to  all  lands  lying  within  said  limits  owned  or  held  by  any 
Indian  or  Indian  Tribes;  and  until  the  title  thereto  shall  have  been 
extinguished  by  the  United  States,  the  same  shall  be  and  remain 
subject  to  the  disposition  of  the  United  States,  and  the  said  Indian 
lands  shall  remain  under  the  absolute  jurisdiction  and  control  of 
the  Congress  of  the  United  States;  that  the  lands  belonging  to  cit- 
izens of  the  United  States  residing  without  this  State  shall  never 
be  taxed  at  a  higher  rate  than  the  lands  belonging  to  residents  of 
this  State;  that  no  taxes  shall  be  imposed,  by  this  State  on  lands 
or  property  therein  belonging  to,  or  which  may  hereafter  be  pur- 
chased by  the  United  States  or  reserved  for  its  use.  But  nothing 
herein  shall  preclude  this  State  from  taxing,  as  other  lands  are 
taxed,  any  lands  owned  or  held  by  any  Indian  who  has  severed  his 
tribal  relations,  and  has  obtained  from  the  United  States  or  from 
any  other  person  a  title  thereto  by  patent  or  other  grant,  save  and 
except  such  lands  as  have  been  or  may  be  granted  to  any  Indian 
or  Indians  under  any  act  of  Congress  containing  a  provision  ex- 
empting the  lands  thus  granted  from  taxation  but  that  all  such 
ands  shall  be  exempt  from  taxation  by  this  State  so  long  and  to 
such  extent  as  such  act  of  Congress  may  prescribe. 

THIRD:  That  the  State  of  South  Dakota  shall  assume  and 
pay  that  portion  of  the  debts  and  liabilities  of  the  Territory  of 
Dakota  which  the  joint  commission  appointed  by  the  Constitu- 
tional Conventions  of  North  Dakota  and  South  Dakota  have  ad- 
justed and  agreed  upon  as  the  just  proportion  of  said  debt  and 
liabilities  to  be  assumed  and  paid  by  South  Dakota.  The  agree- 
ment reached  respecting  said  debts  and  liabilities  is  incorporated 
in  the  Constitution  of  this  State  and  this  State  obligates  itself  to 
pay  its  proportion  of  such  debts  and  liabilities,  as  therein  specified, 
the  same  as  if  they  had  been  created  bv  this  State. 


174  SOUTH  DAKOTA  DEBATES  1889 

FOURTH:  That  provision  shall  be  made  for  the  establishment 
and  maintenance  of  systems  of  public  schools,  which  shall  be 
open  to  all  children  of  this  State  and  free  from  sectarian  control. 

FIFTH:  That  this  Ordinance  shall  be  and  remain  irrevocable 
without  the  consent  of  the  United  States  and  the  people  of  this 
State. 

W.  H.  MURPHY, 

C.   A.   MOULTON, 

C.  G.  SHERV  OOD, 
C.  J.  B.  HARRIS, 

Mr.  Dickinson:  Is  this  Ordinance  an  article  of  the  Consti- 
tution? It  seems  to  me  it  ought  to  be  passed  through  the  hands 
of  the  Schedule  and  Ordinance  Committee;  I  move  that  it  be  re- 
ferred to  that  Committee. 

Mr.  Jolley:  This  is  a  very  peculiar  article  of  the  Constitu- 
tion; I  do  not  think  that  this  Committee  has  used  proper  caie- 
So  far  as  the  suggestion  made  by  the  gentleman  from  Day  (Mr. 
Dickinson)  is  concerned,  there  is  such  a  provision  in  the  Schedule. 
And  here  is  the  objection  that  I  have;  it  gives  all  lands  to  the 
Indian  and  Indian  Tribes  and  puts  that  land  under  the  jurisdiction 
of  the  United  States,  in  other  words  if  there  is  any  Indian  owning 
any  land  in  the  Territory  of  Dakota,  it  cannot  be  used  for  public 
purposes ;  you  cannot  run  a  highway  across  it  only  by  going  to 
Congress ;  the  point  I  wish  to  call  the  attention  of  the  Convention 
to  is  this  Ordinance  irrevocable  without  the  consent  of  the  United 
States  and  the  people  of  this  State.  The  inquiry  in  my  mind  is 
this;  if  you  pass  such  an  ordinance  as  this  and  put  it  in  the  Con- 
stitution of  South  Dakota,  you  fix  it  so  the  only  way  it  can  be  re- 
voked so  far  as  the  State  of  South  Dakota  is  concerned  and  so  far 
as  the  United  States  is  concerned  is  by  act  of  Congress;  I  don't 
know  but  what  we  would  have  to  call  another  Constitutional  Con- 
vention in  order  to  change  this. 

The  Chairman:  Is  there  any  second  to  the  motion  of  the 
gentleman  from  Da}-  ? 

Mr.  Young:     I  second  the  motion. 

The  motion  prevailed  and  the  report  of  the  Committee  on 
Federal  relations  was  referred  to  the  Committee  on  Schedule  and 
Ordinance. 

The  Chairman:  The  next  order  of  business  is  consideration 
of  the  memorial  to  Congress  with  relation  to  the  securing  a  com- 


GEOLOGICAL  SURVEYS  175 

mission  for  the  purpose  of  making  a  geological  and  hydrographic 
survey  of  the  State.     Clerk  reads  the  report  as  follows 
MR.  PRESIDENT: — 

Your  Committee  on  Federal  Relations  to  which  was  referred 
the  re-solution  relating  to  a  memorial  to  Congress  for  the  appoint- 
ment of  a  commission  for  the  purpose  of  making  a  geological  and 
hydrographic  survey  of  the  State  would  respectfully  report  that 
we  have  had  the  same  under  consideration  and  have  decided  to 
report  the  accompanying  memorial  and  recommend  its  passage. 
A  MEMORIAL  to  the  Congress  of  the  United  States  requesting 

the  appointment  of  a  Commission  for  the  purpose  of  making 

a  geological  and  hydrographic  survey  of  the  State. 

To  the  Congress  of  the  United  States: 

The  Constitutional  Convention  of  the  State  of  South  Dakota, 
duly  assembled,  would  respectfully  represent  to  your  honorable 
body  that  it  has  been  demonstrated  that  within  the  limits  of  Scuth 
Dakota  there  exists  what  is  known  as  an  artesian  basin  or  system, 
but  that  its  extent  has  net  been  fully  determined.  And  that  a 
desire  is  being  generally  expressed  by  the  people  of  South  Dakota 
that  the  matter  be  investigated  and  the  extent  of  the  system  fully 
determined  and  its  availability  for  the  purposes  of  agriculture  and 
manufactures  be  determined. 

Now,  therefore,  the  said  Convention  would  respectfully 
memorialize  your  honorable  body  and  request  you  to  appoint  at 
'the  earliest  possible  time  a  Commission  for  the  purpose  of  making 
and  with  power  to  make  a  thorough  and  complete  geological  and 
hydrographic  survey  of  the  State,  including  mineralogical  forma- 
tion of  1  lie  Black  Hills  and  the  artesian  basin  of  South  Dakota, 
and  that  you  make  the  necessary  appropriations  therefor. 

W.  H.  MURPHY, 
C.  A.  HOULTON. 

C.  G.   SilKKWOOD, 

C.  J.  B.  HARRIS. 

The  Chairman:  What  is  the  pleasure  of  the  Convention  in 
regard  to  this  memorial? 

Mr.  Davies:  I  move  you,  Mr.  President,  that  wre  adopt  this 
memorial. 

Motion  scvonded. 

Mr.  Dickinson:  I  would  ask  if  there  does  not  already  exist 
a  geological  survey  of  this  section  of  the  Tinted  States,  and  further 
I  would  inquire  whether  or  not,  after  we  are  admitted,  as  a  state, 
the  government  would  not  simply  refer  it  back  to  us,  and  say, 
make  such  surveys  as  you  desire. 

Mr.  Hartley:      My  understanding  is  that   when  we  become  a 


176  SOUTH  DAKOTA  DEBATES  1889 

state  these  matters  will  have  to  be  attended  to  by  ourselves ;  the 
United  States  make  these  surveys  for  the  territories  and  not  for 
the  states. 

Mr.  Clough:  I  recall  being  on  a  train  crossing  the  State  of 
Wisconsin  from  Madison  to  Janesville  and  meeting  a  gentleman 
who  said  he  represented  the  United  States  Surveying  Service;  he 
said  he  was  sent  out  by  the  Smithsonian  Institute  at  the  expense 
of  the  United  States,  to  a  certain  section  of  the  country  I  spent 
the  larger  part  of  the  day  with  him  and  I  understood  from  him 
that  the  government  through  the  Smithsonian  Institute  carries 
on  these  surveys.  I  know  in  the  State  University  we  have  been 
discussing  this  subject  and  we  have  the  understanding  that  while 
we  will  do  something  ourselves  as  a  state,  the  United  States  Govern- 
ment through  the  Smithsonian  Institute  will  carry  on  these  surveys 
such  as  we  ask  today. 

Mr.  Davies:  In  view  of  the  importance  of  this  question  it 
can  do  no  harm  making  the  application  to  Congress ;  I  do  not  think 
there  is  any  question  about  the  authority  of  the  United  States  to 
make  this  survey ;  this  irrigation  subject  and  the  matter  of  the 
artesian  well  system  is  an  important  subject.  And  the  eyes  of  the 
people  of  this  United  States  are  upon  that  question  and  if  there  is 
anything  we  can  do  to  help  ourselves  and  our  sister  states  in  this 
matter  of  irrigation  let  us  do  it ;  we  certainly  can  try  and  no  harm 
can  be  done  and  perhaps  great  good  will  result. 

The  matter  under  consideration  reaching  a  vote  the  motion 
prevailed  and  the  memorial  was  declared  adopted. 

The  Chairman:  The  next  is  the  report  of  the  Committee  on 
Education  and  School  Lands.  With  regard  to  that  report  I  would 
say,  I  believe  Mr.  Humphrey  is  Acting  Chairman  and  when  he 
went  away  he  asked  me  to  have  that  held  open  until  his  return; 
I  will  suggest  further  that  that  is  a  very  important  report.  If  I 
was  on  the  floor  of  the  Convention  I  would  ask  that  the  Convention 
hold  it  over  until  tomorrow. 

Mr.  Huntley:  I  move  that  the  consideration  of  this  report 
be  postponed  until  tomorrow. 

The  motion  was  duly  seconded  and  adopted. 

The  Clerk  read  the  report  of  the  Committee  on  State  Insti- 
tutions and  Public  Buildings. 


REPORT  OF  COMMITTEE  177 

Sioux  Falls.  South  Dakota,  July  18,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  State  Institutions  and  Public  Buildings, 
to  whom  was  referred  Article  XIV,  entitled,  "State  Institutions" 
have  considered  the  same  and  compared  said  Article  XIV  with  the 
Sioux  Falls  Constitution  and  the  Act  of  Congress  known  as  the 
"Omnibus  Bill"  and  have  instructed  me  to  report  the  following 
as  Article  XIV  of  the  Constitution  and  that  the  same  is  in  ac- 
cordance with  the  Sioux  Falls  Constitution  andthechangesthereto 
authorized  by  the  Omnibus  Bill.  The  insertion  of  the  word 
"South"  before  Dakota  in  Section  1  comprises  all  the  changes 
made. 

ARTICLE  XIV. 

STATE   INSTITUTIONS. 

SECTION.  1.  The  charitable  and  penal  institutions  of  the 
State  of  South  Dakota  shall  consist  of  a  penitentiary,  insane  hos- 
pital, a  school  for  the  deaf  and  dumb,  a  school  for  the  bilnd  and  a 
reform  school. 

SEC.  2.  The  State  institutions  provided  for  in  the  preceding 
section  shall  be  under  the  control  of  a  State  Board  of  Charities 
and  Corrections,  under  such  rules  and  restrictions  as  the  Legisla- 
ture shall  provide;  such  Board  to  consist  of  not  to  exceed  five 
members,  to  be  appointed  by  the  Governor  and  confirmed  by  the 
Senate,  and  whose  compensation  shall  be  fixed  by  law. 

EC.  3.  The  State  University,  the  Agricultural  College,  the 
Normal  Schools,  and  other  educational  institutions  that  may  be 
sustained  either  wholly  or  in  part  by  the  State  shall  be  under  the 
control  of  a  board  of  nine  members,. appointed  by  the  Governor 
and  confirmed  by  the  Senate,  to  be  designated  the  Regents  of  Ed- 
ucation. They  shall  hold  their  office  for  six  years,  three  retiring 
every  second  year 

The  Regents,  in  connection  with  the  faculty  of  each  institu- 
tion shall  fix  the  course  of  study  in  the  same. 

The  compensation  of  the  Regents  shall  be  fixed  by  the  Legis- 
lature. 

SEC.  4.  The  Regents  shall  appoint  a  board  of  five  members 
for  each  institution  under  their  control,  to  be  designated  the  Board 
of  Trustees.  They  shall  hold  office  for  five  years,  one  member  re- 
tiring annually.  The  Trustees  of  each  institution  shall  appoint 
the  faculty  of  the  same  and  shall  provide  for  the  current  manage- 
ment of  the  institution  but  all  appointments  and  removals  must 
have  the  approval  of  the  Regents  to  be  valid.  The  Trustees  of 
the  several  institutions  shall  receive  no  compensation  for  their 
services,  but  they  shall  be  reimbursed  for  all  expenses  incurred 
in  the  discharge  of  their  duties,  upon  presenting  an  itemized  ac- 
count of  the  same  to  the  proper  officer.  Kach  Hoard  of  Trustees 


178  SOUTH  DAKOTA  DEBATES,  1889. 

at  its  first  meeting  shall  decide  by  lot  the  order  in  which  its  members 

shall  retire  from  office. 

SEC.   5.     The  Legislature  shall   provide  that  the  science  of 

mining  and  metallurgy  be  taught  in  at  least  one  institution  of 

learning  under  the  patronage  of  the  State. 

F.  G.  YOUNG,  Chmn. 
WM.  VAN  EPS, 
C.  G.  HARTLEY, 
J.  DOWNING, 
CHAUNCEY  L.  WOOD, 
C.  BUECHLER, 
R.  A.  SMITH, 
J.  F.  WOOD. 

The  Chairman:  What  is  the  pleasure  of  the  Convention  in 
regard  to  this  report? 

Mr.  Wescott:     I  move  that  the  report  be  adopted. 
Motion  was  duly  seconded  and  by  vote  of  the  Convention 
was  declared  adopted. 

The  Chairman:  The  next  report  is  the  report  of  the  Committee 
on  Exemptions. 

The  Clerk  read  said  report  as  follows: 

Sioux  Falls,  Dakota,  July  18,  1889. 
MR.  PRESIDENT:..  . 

Your  Committee  on  Exemptions  to  whom  was  referred  Section 
4,  Article  XXI,  entitled,  "Exemptions",  have  considered  the  same 
and  have  compared  said  Section  4,  in  Article  XXI  with  the  Sioux 
Falls  Constitution  and  the  Act  of  Congress  known  as  the  "Omnibus 
Bill"  and  have  instructed  me  to  report  the  following  as  Section 
4,  Article  XXI  of  the  Constitution  and  that  the  same  is  in  accordance 
with  the  Sioux  Falls  Constitution  and  the  changes  thereto  author- 
ized by  the  "Omnibus  Bill,  without  any  amendments. 

SEC.  4.  EXEMPTIONS. — The  right  of  the  debtor  to  enjoy  the 
comforts  and  necessaries  of  life  shall  be  recognized  by  wholesome 
laws  exempting  from  forced  sale  a  homestead,  the  value  of  which 
shall  be  limited  and  denned  by  law  to  all  heads  of  families,  and  a 
reasonable  amount  of  personal  property,  the  kind  and  value  of 
which  to  be  fixed  by  general  laws. 

C.  BUECHLER,  Chmn. 
J.  A*  FOWLES, 
S.  S.  PECK, 
GEO.  H.  CULVER, 
GEO.  C.  COOPER, 
S.  D.  JEFFRIES, 
M.  R.  HENINGER, 
C.  G.  COATS. 


BANKING  AND  CURRENCY  179 

Mr.  Sterling:     I  move  the  adoption  of  the  report. 

Motion  duly  seconded  and  by  vote  of  the  Convention  the  re- 
port was  adopted. 

The  Clerk  reads  the  report  of  the  Committee  on  Banking  and 
Currency. 

Sioux  Falls,  Dakota,  July  19,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Banking  and  Currency  to  whom  was  re- 
ferred Article  XVIII,  entitled,  "Banking  and  Currency,"  have 
considered  the  same  and  have  compared  said  Article  XVIII  with 
the  Sioux  Falls  Constitution  and  the  Act  of  Congress  known  as 
the  "Omnibus  Bill",  and  have  instructed  me  to  report  the  fol- 
lowing as  Article  XVIII  of  the  Constitution  and  that  the  same  is 
in  accordance  with  the  Sioux  Falls  Constituticn  and  the  changes 
thereto  authorized  by  the  Omnibus  Bill. 
ARTICLE  XVIII. 

BANKING  AND  CURRENCY. 

SECTION  1.  If  a  general  banking  law  shall  be  enacted  it  shall 
provide  for  the  registry  and  countersigning  by  an  officer  of  this 
State  of  all  bill  or  paper  credit  designed  to  circulate  as  money,  and 
require  security  to  the  full  amount  thereof,  to  be  deposited  with 
the  State  Treasurer,  in  the  approved  securities  of  the  State  or  of 
the  United  States  to  be  rated  at  ten  per  cent.,  below  their  par 
value,  and  in  case  of  their  depreciation  the  deficiency  shall  be  made 
good  by  depositing  additional  securities. 

SEC.  2.  Every  bank,  banking  company  or  corporation  shall 
be  required  to  cease  all  banking  operations  within  twenty  years 
from  the  time  of  its  organization,  and  promptly  thereafter  close 
its  business,  but  shall  have  corporate  capacity  to  sue  and  be  sued 
until  its  business  is  fully  closed;  but  the  Legislature  may  provide 
by  general  law  for  the  reorganization  of  such  banks. 

SEC.  3.  The  shareholders  or  stockholders  of  any  banking 
corporation  shall  be  held  individually  responsible  and  liable  for 
all  contracts,  debts  and  engagements  of  such  corporation  to  the 
extent  of  the  amount  of  their  stock  therein,  at  the  par  value  thereof, 
in  addition  to  the  amount  invested  in  such  share  of  stock  and  such 
individual  liability  shall  continue  for  one  year  after  any  transfer  or 
sale  of  stock  by  any  stockholder  or  stockholders. 

J.  G.  DAVIS,  Chmn. 
S.  A.  RAMSEY, 
S.  B.  MCFARLAND, 

S.  F.  HUNTLEY, 
C.  J.  BUECHLER, 
C.  S.  GlFFORD. 

Mr.  Young:     I  move  the  adoption  of  the  report. 
Motion  duly  seconded. 


180  SOUTH  DAKOTA  DEBATES  1889 

Mr.  Hartley:  If  you  will  excuse  me,  I  notice  that  in  1885, 
was  submitted  Sec.  2,  a  section  that  I  do  not  clearly  understand; 
is  it  intended  to  relate  to  all  banks? 

The  Chairman:     I  cannot  answer  that. 

Mr.  Hartley:  If  it  is  intended  to  reach  all  banks  we  are 
reaching  too  far;  if  it  is  intended  to  what  we  call  State  Banks  it 
is  all  right. 

Mr.  Davies:  The  Omnibus  Bill  does  not  permit  us  to  know 
anything  about  it;  it  is  simply  a  question  of  changes. 

The  motion  to  adopt  prevailed. 

The  Clerk  next  reads  the  report  of  the  Committee  on  Seal 
and  Coat  of  Arms  as  follows: 

Sioux  Falls,  Dakota,  July  19,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Seal  and  Coat  of  Arms,  to  whom  was  re- 
ferred Section  1,  of  Article  XXI  of  the  Constitution,  entitled, 
"Seal  and  Coat  of  Arms", -having  had  the  same  under  careful  con- 
sideration, beg  leave  to  report  the  following  changes  necessary  to 
comply  with  the  provisions  of  the  Omnibus  Enabling  Act,  to-wit: 
To  insert  the  word  "South"  before  the  word  Dakota  in  the  two  in- 
stances where  the  words  "State  of  Dakota"  appear;  and  we  here- 
with report  Section  1,  Article  XXI,  with  the  change  aforesaid  in- 
corporated therein,  viz: 

ARTICLE  XXI. 

MISCELLANEOUS. 

SECTION  1.  SEAL  AND  COAT  OF  ARMS. — The  design  of  the 
great  seal  of  South  Dakota  shall  be  as  follows:  A  circle  within 
which  shall  appear  in  the  left  foreground  a  smelting  furnace  and 
other  features  of  mining  work.  In  the  left  background  a  range  of 
hills.  In  the  right  foreground  a  farmer  at  his  plow.  In  the  right 
background  a  herd  of  cattle  and  a  field  of  corn.  Between  the  two 
parts  thus  described  shall  appear  a  river  bearing  a  steamboat. 
Properly  divided  between  the  upper  and  lower  edges  of  the  circle 
shall  appear  the  legend,  "Under  God  the  People  Rule",  which 
shall  be  the  motto  of  the  State  of  South  Dakota.  Exterior  to  this 
circle  and  within  a  circumscribed  circle  shall  appear,  in  the  upper 
part  the  words  "State  of  South  Dakota".  In  the  lower  part  the 
words,  "Great  Seal",  and  the  date  in  Arabic  numerals  of  the  year 
in  which  the  State  be  admitted  to  the  Union. 

And  respectfully  recommend  the  adoption  of  the  change  and 
the  submission  of  the  Article  as  amended. 

C.  A.  HOULTON, 
|  H.  A.  HUMPHREY, 

IJOHN   SCOLLARD, 

J.  F.  WOOD. 


OATH  OF  OFFICE  181 


The  Chairman:     What  is  the  pleasure  of  the  Convention  in 
regard  to  the  report  of  the  Committee  on  Seal  ? 
A  Voice:     I  move  its  adoption. 

Said  motion  being  submitted  to  a  vote  of  the  Convention 
was  duly  adopted. 

The  Chairman:  The  next  report  is  the  report  of  the  Committee 
on  Miscellaneous  Subjects. 

The  report  was  read  by  the  Clerk  as  follows: 

Sioux  Falls,  Dakota,  July  18,  1888. 
MR.  PRESIDENT: — 

Your  Committee  on  Miscellaneous  Subjects,  to  whom  was  re- 
ferred Article  XXI,  Section  3,  beg  leave  to  report  that  in  our  opinion 
no  change  is  necessary  in  said  section,  which  is  hereto  attached. 

SEC.  3.  OATH  OF  OFFICE.— Every  person  elected  or  appointed 
to  any  office  in  this  State,  except  such  inferior  officers  asmaybe 
by  law  exempted,  shall,  before  entering  upon  the  duties  thereof, 
take  an  oath  or  affirmation  to  support  the  Constitution  of  the 
United  States  and  of  this  State,  and  faithfully  to  discharge  the 
duties  of  his  office. 

H.  W.  EDDY,  Chmn. 
W.  L.  WILLIAMS, 
WM.  COOK, 
WM.  STODDARD, 
SANFORD  PARKER, 
C.  G.  HARTLEY! 

The  Chairman:  What  is  the  pleasure  of  the  Convention  with 
regard  to  this  report  ? 

Mr.  Wood:     I  move  that  the  report  be  adopted. 

Motion  seconded  and  reaching  a  vote,  was  duly  adopted  and 
so  declared  by  the  Chair. 

The  Chairman:  The  next  report  is  the  report  of  the  Com- 
mittee on  Executive  and  Administrative. 

The  Clerk  read  the  report  as  follows: 

Sioux   Falls,   Dakota,  July    18,    1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Article  IV  of  the  Sioux  Falls  Constitution, 
"Executive  and  Administrative",  have  considered  the  same  and 
have  compared  said  Article  IV  with  the  Act  of  Congress  known  as 
the  "Omnibus  Bill",  and  have  instructed  me  to  report  the  following 
as  Article  IV  of  the  Constitution,  and  that  the  same  is  in  accordance 
with  the  Sioux  Falls  Constitution  and  the  Omnibus  Bill. 

C.  R.  WESCOTT. 
Chairman  of  Committee. 


182  SOUTH  DAKOTA  DEBATES  1889 

ARTICLE  IV. 

EXECUTIVE  DEPARTMENT. 

SECTION  1.  The  executive  power  shall  be  vested  in  the  Gov- 
ernor who  shall  hold  his  office  for  two  years ;  a  Lieutenant  Governor 
who  shall  be  elected  at  the  same  time  and  for  the  same  term. 

SEC.  2.  No  person  shall  be  eligible  to  the  office  of  Governor 
or  Lieutenant  Governor  except  a  citizen  of  the  United  States  and 
a  qualified  elector  of  the  State,  who  shall  have  attained  the  age  of 
thirty  years,  and  who  shall  have  resided  two  years  next  preceding 
the  election  within  the  State  or  Territory,  nor  shall  he  be  eligible 
to  any  other  office  during  the  term  for  which  he  shall  have  been 
elected. 

SEC.  3.  The  Governor  and  Lieutenant  Governor  shall  be 
elected  by  the  qualified  voters  of  the  State  at  the  time  and  place 
of  choosing  members  of  the  Legislature.  The  persons  respectively 
having  the  highest  number  of  votes  for  Governor  and  Lieutenant 
Governor  shall  be  elected,  but  if  two  or  more  shall  have  an  equal 
and  highest  number  of  votes  for  Governor  or  Lieutenant  Governor, 
the  two  houses  of  the  Legislature  at  its  next  regular  session  shall 
forthwith,  by  joint  ballot,  choose  one  of  such  persons  for  said 
office.  The  returns  of  the  election  for  Governor  and  Lieutenant 
Governor  shall  be  made  in  such  a  manner  as  shall  be  prescribed  by 
law. 

SEC.  4.  The  Governor  shall  be  Commander-in-Chief  of  the 
military  and  naval  forces  of  the  State,  except  when  they  shall 
be  called  into  the  service  of  the  United  States,  and  may  call  out 
the  same  to  execute  the  laws,  suppress  insurrection  and  repel  in- 
vasion. He  shall  have  power  to  convene  the  Legislature  on  ex- 
traordinary occasions.  He  shall  at  the  commencement  of  each 
session  communicate  to  the  Legislature  by  message,  information  of 
the  condition  of  the  State,  and  shall  recommend  such  measures 
as  he  shall  deem  expedient.  He  shall  transact  all  necessary  business 
with  the  officers  of  the  government,  civil  and  military.  He  shall 
expedite  all  such  measures  as  may  be  resolved  upon  by  the  Legis- 
lature and  shall  take  care  that  the  laws  be  faithfully  executed. 

SEC.  5.  The  Governor  shall  have  the  power  to  remit  fines  and 
forfeitures,  to  grant  reprieves,  commutations  and  pardons  after 
conviction  for  all  offenses  except  treason  and  cases  of  impeachment ; 
provided,  that  in  all  cases  where  the  sentence  of  the  court  is  capital 
punishment,  imprisonment  for  life  or  for  a  longer  term  than  two 
years,  or  a  fine  exceeding  $200  no  pardon  shall  be  granted,  sentence 
commuted  or  fine  remitted  except  upon  the  recommendation  in  writ- 
ingof  aboardof  pardons  consisting  of  the  presiding  judge,  Secretary 
of  State  and  Attorney  General,  after  full  hearing  in  open  session,  and 
such  recommendation,  with  the  reasons  therefor,  shall  be  filed  in 
the  office  of  the  secretary  of  State;  but  the  Legislature  may  by  law 
in  all  cases  regulate  the  manner  in  which  the  remission  of  fines, 


BRIBERY  183 


pardons,  commutations,  and  reprieves  may  be  applied  for.  Upon 
conviction  for  treason  he  shall  have  the  power  to  suspend  the 
execution  of  the  sentence  until  the  case  shall  be  reported  to  the 
Legislature  at  its  next  regular  session,  when  the  Legislature  shall 
either  pardon  or  commute  the  sentence,  direct  the  execution  of 
the  sentence  or  grant  a  further  reprieve.  He  shall  communicate 
to  the  Legislature  at  each  regular  session,  each  case  of  remission 
of  fine,  reprieve,  commutation  or  pardon  granted  by  him  in  the 
cases  in  which  he  is  authorized  to  act  without  the  recommendation 
of  the  said  Board  of  Pardons,  stating  the  name  of  the  convict,  the 
crime  of  which  he  is  convicted,  the  sentence  and  its  date,  and  the 
date  of  the  remission,  commutation,  pardon  or  reprieve,  with  his 
reasons  for  granting  the  same. 

SEC.  6.  In  case  of  death,  impeachment,  resignation,  failure 
to  qualify,  absence  from  the  State,  removal  from  office,  or  other 
disability  of  the  Governor,  the  powers  and  duties  of  the  office  for 
the  residue  of  the  term,  or  until  he  shall  be  acquitted,  or  the  dis- 
ability removed,  shall  devolve  upon  the  Lieutenant  Governor. 

SEC.  7.  The  Lieutenant  Governor  shall  be  President  of  the 
Senate,  but  shall  have  only  a  casting  vote  therein.  If,  during  a 
vacancy  in  the  office  of  Governor,  the  Lieutenant  Governor  shall 
be  impeached,  displaced,  resign  or  die,  or  from  mental  or  physical 
disease  or  otherwise  become  incapable  of  performing  the  duties 
of  his  office,  the  Secrteary  of  State,  shall  act  as  Governor  until 
the  vacancy  shall  be  filled  or  the  disability  removed. 

SEC.  8.  When  any  office  shall  from  any  cause  become  vacant 
and  no  mode  is  provided  by  the  Constitution  or  law  for  filling  such 
vacancy,  the  Governor  shall  have  the  power  to  fill  such  vacancy 
by  appointment. 

SEC.  9.  Every  bill  which  shall  have  passed  the  Legislature 
shall,  before  it  becomes  a  law,  be  presented  to  the  Governor.  If 
he  approve  he  shall  sign  it,  but  if  not,  he  shall  return  it  with  his 
objection  to  the  house  in  which  it  originated,  which  shall  enter 
the  objection  at  large  upon  the  Journal  and  proceed  to  re- 
consider it.  If,  after  such  reconsideration,  two-thirds  of  the  mem- 
bers present  shall  agree  to  pass  the  bill,  'it  shall  be  sent,  together 
with  the  objection,  to  the  other  house,  by  which  it  shall  likewise 
be  reconsidered,  and  if  it  be  approved  by  two-thirds  of  the  members 
present ,  it  shall  become  a  law  ;  but  in  all  such  cases  the  vote  of  both 
houses  shall  be  determined  by  the  yeas  and  nays,  and  the  names 
of  the  members  voting  for  and  against  the  bill  shall  be  entered  upon 
the  Journal  of  each  house  respectively.  If  any  bill  shall  not  be 
returned  by  the  Governor  within  three  days  (Sundays  except ed)  af- 
ter it  shall  have  been  presented  to  him,  the  same  shall  be  a  law, 
unless  the  Legislature  shall  by  its  adjournment  prevent  its  re-- 
turn; in  which  case  it  shall  be  filed,  with  his  objection,  in  the  office 


184  SOUTH  DAKOTA  DEBATES  1889 

of  the  Secretary  of  State,  within  ten  days  after  such  adjournment, 
or  become  a  law. 

SEC.  10.  The  Governor  shall  have  power  to  disapprove  of 
any  item  or  items  of  any  bill  making  appropriations  of  money 
embracing  distinct  items  and  parts  or  parts  of  the  bill  approved 
shall  be  a  law,  and  the  item  or  items  disapproved  shall  be  void, 
unless  enacted  in  manner  following:  If  the  Legislature  be  in  ses- 
sion he  shall  transmit  to  the  House  in  which  the  bill  originated  a 
copy  of  the  item  or  items  thereof  disapproved,  together  with  his 
objection  thereto,  and  the  items  objected  to  shall  be  separately 
reconsidered,  and  each  item  shall  then  take  the  same  course  as  is 

prescribed  for  the  passage  of  bills  over  the  executive  veto. 

SEC.  11.  Any  Governor  of  this  State  who  asks,  receives  or 
agrees  to  receive  any  bribe  upon  any  "understanding  that  his  of- 
ficial opinion,  judgment  or  action  shall  be  influenced  thereby,  or 
who  gives,  or  offers,  or  promises  his  official  influence  in  consideration 
that  any  member  of  the  Legislature  shall  give  his  official  vote  or 
influence  on  any  particular  side  of  any  question  or  matter  upon  which 
he  may  be  required  to  act  in  his  official  capacity,  or  who  menaces  any 
member  by  the  threatened  use  of  his  veto  power  or  who  offers  or 
promises  any  member  that  he,  the  said  Governor,  will  appoint  any 
particular  person  or  persons  to  any  office  created  or  thereafter  to 
be  created ;  in  consideration  that  any  member  shall  give  his  official 
vote  or  influence  on  any  matter  pending  or  thereafter  to  be  intro- 
duced into  either  House  of  the  said  Legislature,  or  who  threatens  any 
member  that  he,  the  said  Governor,  will  remove  any  person  or 
persons  from  any  office  or  position  with  intent  to  in  any  manner 
influence  the  official  action  of  said  members,  shall  be  punished  in 
the  manner  now,  or  that  may  hereafter  be  provided  by  law,  and 
upon  conviction  thereon  shall  forfeit  all  right  to  hold  or  exercise 
any  office  of  trust  or  honor  in  this  state. 

SEC.  12.  There  shall  be  chosen  by  the  qualified  electors 
of  the  State  at  the  times  and  places  of  choosing  members  of  the 
Legislature,  a  Secretary  of  State,  Auditor,  Treasurer,  Superin- 
tendent of  Public  Instruction,  Commissioner  of  School  and  Public 
Lands,  and  Attorney  General,  who  shall  severally  hold  their  offices 
for  the  term  of  two  years,  but  no  person  shall  be  eligible  to  the 
office  of  Treasurer  for  more  than  two  terms  consecutively.  They 
shall  respectively  keep  their  offices  at  the  seat  of  government. 

SEC.  13.  The  powers  and  duties  of  the  Secretary  of  State, 
Auditor,  Treasurer,  Superintendent  of  Pubilc  Instruction,  Com- 
missioner of  School  and  Public  Lands,  and  Attorney  General  shall 
be  prescribed  by  law. 

C.  R.  WESCOTT, 

Chairman  of  Executive  and  Administrative  Com. 
Mr.  Jolley:     I  move  its  adoption. 


CONSIDERATION  OF  REPORTS  185 

Motion  duly  seconded  by  Mr.  Young. 

Motion  prevailed  and  the  report  was  declared  adopted. 

Clerk  reads  the  report  of  Committee  on   Manufactures  and 
Agriculture  as  follows: 
To  THE  PRESIDENT  OF  THE  CONSTITUTIONAL  CONVENTION  SOUTH 

DAKOTA: 

We,  the  undersigned  Committee  on  Manufactures  and  Agri- 
culture, do  hereby  respectfully  report  that  on  careful  examination 
we  find  that  no  changes  are  required  in  those  parts  of  the  Consti- 
tution, submitted  to  our  inspection,  in  order  to  comply  with  the 
provisions  of  tht  Enabling  Act  passed  by  the  Congress  of  the 
United  States. 

Sioux  Falls.  July  19,  1889. 

T.W.  P.  LEE, 
J.  F.  WHITLOCK, 
R.  A.  SMITH, 

T.  F.  DlEFENDORF, 
C.  S.  GlFFORD, 

E.  G.  EDGERTON. 
C.  R.  WESCOTT, 
R.  F.  LYONS, 

Mr.  Willis:  I  would  like  to  ask  the  Chairman  of  that  Com- 
mittee for  the  chapter,  verse  and  page  where  that  report  is;  I  am 
in  favor  of  the  Preamble. 

Mr.  Jeffries:  I  move  that  it  be  referred  back  to  the  Committee 
for  amendment,  to  comply  with  the  report  of  the  Committee  on 
Rules. 

Mr.  Davies:  I  move  that  it  be  referred  to  the  Committee 
on  Miscellaneous  Subjects. 

Mr.  Young:     I  move  its  adoption  as  read. 

Motion  duly  seconded. 

Mr.  Willis :     What  would  be  the  number  of  the  Article  ? 

Mr.  Fellows:  I  move  that  we  postpone  the  considerat;on  of 
that  report. 

Mr.  Lee:  I  wish  to  make  a  remark.  I  was  very  careful  re- 
garding this  Constitution;  I  went  all  through  Spink  County  saving 
to  my  constituents  that  it  was  the  best  Constitution  I  ever  read; 
I  dislike  very  much  to  go  back  on  my  record.  When  I  found  out 
there  was  no  such  department  here,  I  disliked  that  very  mu-.  h. 
inasmuch  as  that  is  a  very  important  question.  The  hand  that 
rocks  our  cradles  rocks  the  world  and  the  hand  that  holds  the 
plow,  feeds  the  occupants  of  the  cradles  I  wish  to  say  right  here 


186  SOUTH  DAKOTA  DEBATES  1889 

in  public  that  this  Convention  made  a  mistake  in  appointing  such 
a  Committee,  but  I  think  we  had  better  let  it  go;  it  looks  well  on 
paper  and  does  no  harm. 

The  report  coming  to  a  vote,  was  adopted,  amidst  laughter. 

The  Chairman:  The  next  is  the  consideration  of  the  report 
of  the  Committee  on  Military  affairs. 

The  report  was  read  by  the  Clerk,  as  follows: 

Sioux  Falls,  Dakota,  July  18,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Military  Affairs  to  whom  was  referred 
Article  No.  XV,  entitled  "Militia",  have  considered  the  same  and 
have  compared  said  Article  No.  XV  with  the  Sioux  Falls  Consti- 
tution and  the  Act  of  Congress,  known  as  the  Omnibus  Bill,  and 
we  report  the  following  as  article  XV  of  the  Constitution  and  that 
the  same  is  in  accordance  with  the  Sioux  Falls  Constitution,  and 
the  changes  thereto  authorized  by  the  Omnibus  Bill,  viz:  The 
name  of  South  Dakota  in  Sections  One  and  Six  in  lieu  of  Dakota. 

SECTION  1.  The  militia  of  the  State  of  South  Dakota,  shall 
consist  of  all  able-bodied  male  persons  residing  in  the  State,  be- 
tween the  ages  of  18  and  45  years,  except  such  persons  as  now  are 
or  hereafter  may  be  exempted  by  the  laws  of  the  United  States 
or  of  this  State. 

SEC.  2.  The  Legislature  shall  provide  by  the  law  for  the 
enrollment,  uniforms,  equipment  and  discipline  of  the  militia 
and  the  establishment  of  voulnteer  and  such  other  organizations, 
or  both,  as  may  be  deemed  necessary  for  the  protection  of  the 
State,  the  preservation  of  order  and  the  efficiency  and  good  of 
the  service. 

SEC.  3.  The  Legislature  in  providing  for  the  organization 
of  the  militia,  shall  conform,  as  nearly  as  practicable,  to  the  regu- 
lations for  the  government  of  the  armies  of  the  United  States. 

SEC.  4.  All  militia  officers  shall  be  commissioned  by  the 
Governor  and  may  hold  their  commissions  for  such  period  of  time 
as  the  Legislature  may  provide,  subject  to  removal  by  the  Governor 
for  cause,  to  be  first  ascertained  by  a  Court  Martial,  pursuant 
to  law. 

SEC.  5.  The  militia  shall  in  all  cases,  except  treason,  felony, 
or  breach  of  peace,  be  privileged  from  arrest  during  their  atten- 
dance at  muster  and  elections,  and  in  going  and  to  returning  from 
the  same. 

SEC.  6.  All  military  records,  banners  and  relics  of  the  State, 
except  when  in  lawful  use,  shall  be  preserved  in  the  office  of  the 
Adjutant  General  as  an  enduring  memorial  of  the  patriotism  and 
valor  of  South  Dakota,  and  it  shall  be  the  duty  of  the  Legislature 
to  provide  by  law  for  the  safe-keeping  of  the  same. 

SEC.    7.     No    person    having    conscientious    scruples    against 


MILITARY  AFFAIRS  187 

bearing  arms  shall  be  compelled  to  do  military  duty  in  time  of 
peace. 

Respectfully  submitted, 

E.  E. CLOUGH, 
W.  H.  MATSON, 
T.  W.  P.  LEE, 
W.  H.  GODDARD. 

Further: 

There  was  submitted  to  your  Committe'e  a  petition  from  Jacob 
Schmidt  and  other  Russian  citizens,  asking  that  Section  7,  of 
Article  XV,  be  so  amended  as  at  all  times  exempt  persons  having 
such  religious  scruples  from  doing  military  duty;  the  Committee 
finds  that  it  is  not  possible  for  this  Convention  to  so  annul  said 
Section  7,  Article  XV. 

E.  E.  CLOUGH, 
Chairman  Committee. 

The  Chairman:  What  is  the  pleasure  of  the  Convention?  I 
move  that  the  report  of  the  Committee  on  Military  Affairs  be 
adopted. 

Motion  duly  seconded. 

The  Clerk  read  the  further  report  by  the  same  Committee  with 
relation  to  a  petition  by  Jacob  Schmidt  and  other  Russian  citizens, 
exempting  certain  persons  having  religious  scruples  against  bear- 
ing arms  for  military  duty. 

Mr.  Clough:  I  would  like  to  say  that  Mr.  Williams  (of  Bon 
Homme)  desired  us  to  change  the  word  "annul"  found  in  the  last 
line  of  the  report  to  "amend". 

The  Chairman:  If  there  is  n-)  Abjection,  that  amendment 
will  be  made.  The  Chair  hears  n  objection,  the  report  will  be 
so  amended.  What  is  the  pleasure  of  the  Convention  with  regard 
to  this  report? 

Mr.  Dickinson:     I  move  its  adoption. 

Which  motion  prevailed. 

The  Clerk  next  read  the  report  of  the  Committee  on  County 
and  Township  Organization,  as  follows: 

Sioux  Falls,  Dakota,  July  20,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  County  and  Township  Organization,  to 
whom  was  referred  Article  IX,  entitled,  "County  and  Township 
Organization,"  have  considered  the  same  and  have  compared  said 
article  with  the  Sioux  Falls  Constitution  and  the  Act  of  Congress 
known  as  the  Omnibus  Bill,  and  have  instructed  me  to  report  the 
following  as  Artic-k-  IX  (0)  of  the  Constitution,  and  that  the  same 


188  SOUTH  DAKOTA  DEBATES  1889 

is  in  accordance  with  the  Sioux  Falls  Constitution  and  the  changes 
thereto  authorized  by  the  Omnibus  Bill.  That  no  changes  are 
made  excepting  prefixing  the  word  "South"  to  Dakota. 

J.  F.  WHITLOCK, 

Chairman.  . 

The  Chairman:     What  is  the  pleasure  of  the  Convention? 

A  Voice:     I  move  its  adoption. 

Motion  duly  seconded. 

Mr.  Dickinson:  I  see  that  it  compares  with  the  corrected  copy 
except  that  the  word  "other"  should  be  inserted  in  the  second  line 
of  the  Sixth  Section,  making  it  read  "Such  other  counties";  I 
move  that  that  correction  be  made  in  accordance  with  the  original 
draft  of  the  Constitution  by  inserting  the  word  "other"  in  Section 
Six  the  second  line,  before  the  word  "county"— "Such  other 
county". 

Which  motion  was  duly  seconded  and  by  vote  of  the  Conven- 
tion, adopted. 

Mr.  Willis:  In  the  Preamble  to  this  report — in  the  last  line 
but  one,  "That  no  changes  are  made  except  prefixing  the  word 
"South"  to  Dakota.  I  think  that  is  not  proper;  the  word  "South" 
is  not  a  prefix.  I  move  that  it  be  so  amended  instead  of  using 
the  word  "prefix"  use  the  word  insert. 

Motion  seconded. 

The  motion  was  given  an  affirmative  vote  by  the  Convention 
and  the  report  was  declared  so  amended. 

A  Voice:     I  move  the  adoption  of  the  report  as  amended. 

Mr.  Atkinson:  I  would  like  to  have  the  report  as  amended, 
read. 

The  Clerk  reads  the  changes  made  in  the  original  report. 

The  motion  to  adopt  the  report  thereupon  prevailed. 

The  Chairman:  That  completes  the  special  order  for  today; 
what  is  the  further  pleasure  of  the  Convention? 

Mr.  Clough:  I  would  like  to  raise  one  question  of  privilege; 
I  brought  up  from  the  University  of  Dakota,  our  State  University ,n 
these  catalogues,  (indicating)  and  we  specially  ask  the  members 
to  take  them  home  for  reference.  I  would  like  to  say  that  we  had 
three  thousand  printed  and  before  they  were  out  there  was  ap- 
plication for  two  thousand  of  them ;  it  will  show  there  is  some  demand 
for  them ;  I  would  like  to  have'you  take  them  home. 

Mr.  Fellows:     I  would  like  to  call  the  attention  of  the  Con- 


ROUTINE  189 


vention  to  the  fact  that  the  Journal  for  the  sixteenth  day  ought 
to  be  approved ;  that  is  the  day  we  adjourned  without  doing  any 
business,  and  it  was  neglected.  I  move  you,  Sir,  that  it  be  now 
approved. 

The  motion  prevailed  upon  coming  to  a  vote. 

The  Chairman:     I  will  have  a  letter  read. 

Chicago,  July    19th,    1889. 

CHAIRMAN*  OF  THE  CONSTITUTIONAL  CONVENTION: 
DEAR  SIR: — 

I  mail  you  today  a  copy  of  Judge  Altgeld's  work  on  "Our  Penal 
Machinery"  which  gives  statistics  and  general  information  in 
regard  to  the  different  penal  systems  which  it  is  thought  might  be 
of  service  to  the  members  of  the  Convention;  if  you  will  kindly 
have  the  Clerk  send  us  the  names  and  address  of  the  members  of 
the  Convention  we  will  mail  each  a  copy  free  of  charge.  The  work 
is  highly  recommended  by  the  ablest  prison  reformers  of  the  country 
and  is  distributed  in  the  interest  of  prison  reform. 
Very  respectfully  yours, 

C.  J.  FORD. 
Suite  53,  115  Monroe  St.,  Chicago. 

The  Chairman:  I  will  state  to  the  Convention  that  I  took  the 
liberty  this  morning  to  request  the  Clerk  of  the  Convention  to  send 
in  the  names  as  this  is  quite  a  large  book  and  one  I  presume  the 
gentlemen  would  like  to  have  anyway ;  I  have  requested  the  Clerk 
to  forward  the  names. 

Mr.  Whitlock:     I  move  we  do  now  adjourn. 

Which  motion  prevailed  and  the  Convention  stood  adjourned. 


TWENTY-FIRST  DAY. 

Sioux  Falls,  Dakota,  July  24th,  1889. 
Two  o'clock  P.  M. 

Pursuant  to  adjournment  the  Convention  was  called  to  order 
by  the  President. 

Prayer  by  the  Rev.  Mr.  Willis. 

Almighty  God,  we  recognize  that  by  Thy  will  princes  rule  and 
kings  decree  justice.  Assured  are  we  from  the  lives  of  men  and 
from  history  that  woe  is  that  nation  that  makes  its  plans  and  directs 
its  efforts  without  reference  to  the  divine  wisdom,  and  divine 
providence.  Aid,  Thou,  us  in  the  deliberations  of  this  session; 
everemore  guide  and  direct  the  efforts  of  this  new  State  about  to 
be.  for  the  Redeemer's  sake. 

AMEN. 

The  minutes  of  the  preceding  day  were  read  by  the  Clerk  and 
approved. 

Mr.  Willis:  I  notice  a  repetition,  of  the  paragraph  on  the 
twelfth  page  before  the  report  of  the  Committee  on  Seal  and  Coat 
of  Arms ;  repetition  of  the  whole  paragraph  on  the  same  page. 

The  President:     The  Clerk  will  make  the  correction. 

Mr.  Sterling:  I  notice  some  clerical  errors  in  the  report  of 
the  Judiciary  Committee.  I  would  like  to  have  the  Clerk  correct 
the  third  line  of  the  first  paragraph.  *  *  * 

Under  the  order  of  business,  Presentations  of  Communications 
and  Petitions,  the  Clerk  read  the  following  communication: 


192  SOUTH  DAKOTA  DEBATES  1889 

Huron,  Dakota,  July  22,  1889. 

At  a  mass  meeting  of  the  citizens  of  Huron,  Beadle  County, 
on  Monday  evening,  July  22nd,  1889,  it  was  unanimously  ordered 
that  the  Secretary  of  the  mass  meeting  be  requested  to  ask  the 
Constitutional  Convention,  now  in  session  at  Sioux  Falls,  to  adopt 
the  Australian  system  of  voting  on  the  first  day  of  October  next, 
as  expressed  in  the  attached  bill. 

SIGNED:  L.  K.  CHURCH, 

Chairman. 

The  President:  The  Communication  will  be  referred  to  the 
Committee  on  Schedule. 

Unfinished  business  of  the  previous  day. 

Reports  of  Standing  Committees. 

Mr.  Van  Tassel:  The  Congressional  and  Legislative  Appor- 
tionment Committee  are  ready  to  report  as  soon  as  the  report  is 
signed. 

Mr.  Hole:  The  Committee  on  Schedule  submit  our  report 
on  the  Prohibition  clause, — Article  XXIV,  and  also  Article  XXV  — 
Minority  Representation,  which  were  submitted  to  us. 

Mr.  Goddard:  The  Committee  on  Revenue  and  Finance 
report  no  changes ;  our  report  has  been  compared  with  the  report  of 
the  Committee  on  Errata  and  no  changes  were  made. 

The  President:  Consideration  of  reports  of  Standing  Com- 
mittees. 

Reports  of  Select  Committees. 

Mr.  Jolley;  Your  Committee  on  Rules  have  instructed  me 
to  report  the  following: 

Sioux  Falls,  Dakota.  July  24,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Rules  have  instructed  me  to  report  that 
they  recommend  the  two  following  additional  rules  for  the  govern- 
ment of  this  Convention,  to-wit: 

RULE  46. 

That  all  claims  and  accounts  against  this  Convention  not  paid 
by  the  United  States,  shall  at  once  be  presented  to  the  Committee 


JUDICIAL  CIRCUITS  193 


on  Expenses  of  the  Convention,  and  shall  be  considered  by  that 
Committee  and  reported  to  this  Convention;  and  after  any  claim 
is  allowed  by  this  Convention,  a  certificate  of  indebtedness  shall 
be  issued  and  signed  by  the  President  and  Secrteary  of  this  Conven- 
tion to  the  person  to  whom  said  claim  is  allowed,  in  substantially 
the  following  form: 

Sioux  Falls,  Dakota, 1889. 

That  A.*B has  acted  as 

of  the  Constitutional^Convention  held  at  Sioux  Falls,  Dakota,  in 

the  year  1889,  for days,  at  $ per  day,  and 

is  entitledito  the  sum  of as  allowed  by  said  Con- 

s  itutional  Convention. 

President. 

Chief  Clerk. 

RULE  47. 

That  each  member  and  officer  of  this  Convention  shall  have  a 
certificate  of  indebtedness  issued  to  him,  as  provided  by  Rule  46, 
at  the  same  per  diem  as  is  allowed  by  the  United  States  in  the  Omni- 
bus Bill,  for  each  and  every  day  he  attends  this  Convention,  after 
the  appropriation  of  $20,000,  made  by  the  United  States  is  ex- 
pended. 

JOHN  L.  JOLLEV, 

Chairman. 

Mr.  Jolley:     I  move  the  adoption  of  these  rules. 

Which  motion  prevailed  and  Rules  46  and  47  were  declared 
adopted. 

The  President:  Presentation  of  Resolutions  >and  Propositions 
Relating  to  the  Constitution. 

Special  orders.  The  report  of  the  Committee  on  Education 
and  School  Lands. 

Judge  Corson:  I  move  that  that  report  be  laid  over  until 
tomorrow. 

Which  motion  was  duly  seconded. 

The  President:  It  is  moved  that  the  report  of  the  Committee 
on  School  Lands  and  Education  be  postponed  until  tomorrow  and 
made  a  special  order. 

The  motion  prevailed. 


194  SOUTH  DAKOTA  DEBATES,  1889. 

The  report  from  the  Judiciary  Committee  was  read  by  the 
Clerk  as  follows:  (Here  insert  it.) 

Mr.  Sterling:     I  move 'the  adoption  of  the  report 
Motion  seconded. 

Mr.  Spooner:  I  move  as  a  substitute  that  the  report  of  the 
Judiciary  Committee  be  adopted  with  the  exception  of  the  proposed 
division  of  the  Territory  included  in  the  Third,  Fifth  and  Sixth 
Judicial  Circuits  and  that  the  Territory  included  in  said  proposed 
Circuits  containing  the  following  counties  namely:  • 

THIRD  CIRCUIT:  The  Counties  of  Brookings,  Deuel,  Hamlin, 
Codington,  Clark,  Spink,  Grant,  Roberts,  and  all  that  part  of  the 
Whapeton  and  Sisseton  Indian  Reservation  in  this  State,  except 
that  portion  lying  in  Marshall  County. 

FIFTH  CIRCUIT:  The  Counties  of  Kingsbury,  Beadle,  Hand, 
Hyde,  Hughes,  Sully,  Potter,  Faulk,  and  Stanley." 

SIXTH  CIRCUIT:  The  Counties  of  Day,  Marshall,  Brown, 
McPherson,  Edmunds,  Walworth,  Campbell,  and  all  the  territory 
lying  within  said  state  not  included  in  any  other  judicial  circuit. 
I  move  this  as  a  substitute.  (Motion  seconded.) 

Mr.  Dickinson:  In  behalf  or  Day  County,  I  also  wish  to 
second  the  substitute. 

Mr.  Sterling:  I  desire  to  say  upon  this  question,  simply,  that 
this  matter  was  very  fully  discussed  by  the  Committee  on 
Judiciary.  That  at  least  three  days  were  given  to  the  discussion 
of  the  question  of  apportionment  of  these  Districts.  And  that  in 
addition  to  the  three  days'  discussion  in  Committee,  the  matter 
has  been  freely  discussed  ever  since  the  Convention  met,  by  indi- 
vidual members  of  the  Convention.  That  in  addition  to  the  views 
presented  by  the  different  members  of  the  Committee  before  the 
Committee,  there  were  the  views  presented  by  the  different  members 
of  the  Convention,  who  are  not  members  of  the  Committee;  and 
that  a  full  and  fair  hearing  was  given  to  every  one  who  had  any 
adverse  views  to  offer  to  the  circuits  as  finally  apportioned.  I 
think  Mr.  Chairman,  that  no  one  can  say  but  what  there  was  the 
fullest  and  freest  discussion  and  that  this  Committee  went  to  work 
in  earnest  with  the  desire  to  do  what  was  best  for  the  entire  State 
in  the  apportionemnt  of  these  Judicial  Circuits.  And  after  all 
this  discussion,  after  this  thought  upon  the  matter  they  have  pre- 
sented to  you  this  report  as  the  very  best  that  could  be  done.  There 
are  somewhat  different  views  in  regard  to  this.  Some  counties  are 
not  wholly  satisfied.  It  is  no  wonder  to  us  that  there  may  be  two 


JUDICIAL  CIRCUITS  195 


or  three  counties  among  all  these  counties  which,  taking  into  con- 
sideration the  matter  of  accessibility,  are  objecting,  in  that  they  are 
not  joined  to  counties  that  they  would  desire  to  be  joined  to;  it 
is  no  wonder  that  they  should  not  be  perfectly  satisfied.  Yet, 
taking  the  whole  number  of  Circuits, — taking  the  population  com- 
prised within  the  different  circuits,  I  do  not  think  that  a  more  sat- 
isfactory solution  of  this  question  can  be  presented  than  the  one 
presented  in  this  report. 

Mr.  Couchman:  I  rise  briefly  to  say  that  I  see  a  serious  dif- 
ficulty with  the  report.  I  come  before  this  Convention  with  con- 
fidence, believing  they  are  a  fair  body  and  men  that  want  to  do 
justice  to  all  parts  of  South  Dakota.  Therefore,  I  speak  with  con- 
fidence when  I  come  before  you  expecting  that  you  will  act  upon 
that  basis.  I  know  that  after  the  Committee  had  agreed  upon 
this  majority  report  in  talking  with  the  members  of  this  Convent  on 
they  said  to  me,  (and  no  doubt  to  others)  "Had  we  fully  understood 
the  matter  as  we  now  understand  it,  a  different  report  would  have 
been  presented  to  the  Convention".  As  the  Chairman  of  that 
Committee  has  stated,  we  all  had  a  hearing  before  that  Committee. 
Yes,  we  went  before  that  Committee,  but  before  we  were  permitt  d 
to  go  before  that  Committee,  what  was  done?  They  had  met 
and  had  agreed  to  a  certain  report  (Shall  I  say  it!)  had  sworn  to 
stand  by  it,  even  pledged  to  it,  and  that  pledge  was  so  strong  that 
there  was  no  breaking  through  it.  Argument  was  unnecessary, 
reason  was  unavailing,  they  were  bound  on  that  report,  and  our 
meeting  with  them  and  objecting  repeatedly  and  presenting  our 
case  was  of  no  effect  whatever.  Then  what  could  we  do?  Noth- 
ing; more  or  less  than  come  before  this  Convention,  which  we 
believe  and  hope  will  seek  to  do  justice  to  all  portions  of  South 
Dakota.  We  are  assembled  for  Constitutional  purposes;  it  is  not 
a  political  body,  thank  God.  If  it  was  that  kind  of  a  body,  wi- 
would  expect  just  about  the  same  proceedings  that  have  been  gone 
through  with  by  that  Committee  in  making  up  the  circuits  for  the 
Judicial  Districts  of  this  State.  But  we  believe  that  in  making  up 
these  c'rcuits  it  should  be  done  fairly  ;  not  an  attempt  by  portions  of 
the  districts  to  arrange  for  the  benefit  of  any  particular  man,  nor 
set  of  men,  or  of  some  county.  After  the  circuits  are  formed  and 
any  particular  circuit  is  for  a  man  they  desire  to  come  before  the 
circuit,  let  him  come,  but  do  not  let  him  be  brought  into  pr  m- 
inence  directly  by  a  circuit  formed  for  that  express  purpose  Now 


196  SOUTH  DAKOTA  DEBATES  1889 

believing  gentlemen,  that  you  are  a  fair-minded  body,  I  want  to 
i-how  you  where  we  are  placed  in  this  judicial  (?)  shuffle.  And  say 
if  it  is  fair, — and  say  if  it  is  right, — and  say  if  it  is  just, — and  say 
if  it  is  honorable.  Gentlemen,  we  are  in  the  northwest  corner  of 
South  Dakota,  that  is  of  the  populous  portion  of  the  State;  but  one 
county  lying  north  of  us  upon  the  river;  the  County  of  Campbell  lies 
north  of  us.  We  are  placed  in  a  Judicial  C  rcuit  lying  down  the 
river;  there  are  counties  that  would  have  over  one  hundred  miles 
to  ride  down  a  wagon  road,  across  prairie  to  the  place  where  the 
heft  of  our  business  shall  be  done  if  this  judicial  circuit  is  formed. 
Over  one  hundred  miles  through  the  bluffs,  down  one  bluff,  through 
the  ravines,  and  then  up  and  down  another  and  so  on  through  three 
counties,  down  to  where  our  business  will  be  done.  If  we  don't 
like  this  road  we  can  go  through  Aberdeen,  from  Aberdeen  to  Huron, 
and  from  there  we  can  go  to  Pierre.  And  in  doing  that,  gentlemen, 
pass  through  a  number  of  circuits  before  we  get  to  our  place  of 
business.  Gentlemen,  is  it  fair,  is  it  right?  Do  you  want  us  to 
do  it  when  we  can  have  a  judicial  circuit  here  that  we  are  all  sat- 
isfied with,  and  pleased  with,  and  anxious  to  have  adopted?  There 
is  a  tier  of  counties  along  the  northern  boundaries  of  this  State  that 
we  believe  every  gentleman  in  the  Convention  are  unanimous  in 
forming  into  one  judicial  circuit.  Here  we  have  a  road  running  by 
or  through  every  county.  We  can  go  to  that  road,  then  go  east, 
stopping  off  at  Roscoe,  Ipswich,  Aberdeen,  or  wherever  business 
and  return  the  same  day;  shall  we  go  to  all  this  trouble,  all  of  this 
expense  and  expense  of  time  that  will  be  necessary  to  do  business 
in  that  Judicial  Circuit  that  is  there  formed  in  this  report?  Gentle- 
men, I  believe  you  will  say  no.  Let  me  say  further,  when  that 
country  was  settled  up,  we  came  to  Aberdeen  and  then  passed 
westerly  towards  the  river,  forming  acquaintances  as  we  went. 
Let  us  have  a  judicial  circuit  composed  of  men  who  are  acquainted 
with  each  other,  who  like  the  ways  of  each  other  in  business  trans- 
actions, in  judicial  transactions  and  whatever  relations  they 
have,  who  are  pleased  with  each  other.  We  would  like  to  re- 
main together.  We  are  not  afraid  of  being  swallowed  by  Aber- 
deen because  it  is  a  larger  county  than  ours,  not  by  any  means ;  we 
go  to  Aberdeen,  it  is  a  large  place  to  be  sure  and  in  Conventions, 
of  course,  they  outnumber  us  three  to  one;  they  outnumber  us 
in  this  Convention,  but  what  do  we  care  so  long  as  they  are  hon- 
orable with  us  as  they  have  always  been.  A  better  class  of  men 


JUDICIAL  CIRCUITS  197 


does  not  exist  than  lives  in  Aberdeen ;  when  we  go  there  we  are 
treated  courteously  and  kindly;  to  be  sure,  we  pay  our  own 
bills ;  it  is  not  forced  upon  us  to  have  our  bills  paid ;  we  pay  our 
own  bills ;  if  in  any  other  county  the  bills  have  taken  a  different 
course  they  never  ask  for  them.  We  have  no  representative 
upon  that  Committee;  but  let  me  stop  right  here  and  say,  and 
say  conscientiously,  that  not  a  man  from  the  whole  section  would 
have  found  one  word  of  fault  with  the  President  of  this  Conven- 
tion because  we  are  not  there  represented ;  he  supposed  as  we  sup- 
posed, it  mattered  not  where  the  Committee  came  from, they 
would  be  honorable,  they  would  do  justice  by  us,  and  every 
part  of  South  Dakota ;  we  did  not  care  who  Was  on  the  Committee ; 
the  Chairman  will  bear  me  out  in  saying  that  we  did  not  embarass 
him  to  get  upon  the  Committee,  not  by  "any  means.  But  when  the 
Committe  was  formed  we  asked  justice  at  their  hands,  but  as  we 
have  shown  you,  we  will  have  to  leave  it  to  this  Convention  to  say 
shall  we  have  it.  Gentlemen,  it  lies  with  you  to  say  whether 
this  outrage  shall  be  committed.  Won't  you  think  of  this,  gentle- 
men ;  let  me  ask  you  to  act  as  you  would  have  us  act. 

Mr.  Davies:  I  am  from  the  county  adjoining  Wai  worth 
County ;  just  twenty  miles  this  side  of  the  county  seat  of  Walworth 
County,  where  the  judicial  business  of  that  county  will  be  done. 
In  the  first  place  we  do  not  assume  in  all  human  probabilty  that 
all  judicial  business  in  that  judicial  district  will  be  done  in  Pierre. 
Perhaps  a  few  years  ago,  when  we  had  one  term  of  court  eve  v 
four  or  five  years,  it  was  necessary  to  go  to  Pierre  up  and  down 
that  river.  We  expect  that  some  of  this  business  will  be  done  on 
the  lines  of  railroad  running  right  through  the  heart  of  this  Judicial 
District.  If  you  are  not  well  versed  in  the  geography  and  prospects 
of  that  section,  let  me  say  you  will  find  three  roads  running  in  to 
the  very  center  of  those  counties,  and  near  to  the  river;  and  one 
running  to  Eureka,  in  McPherson  County;  so  there  are  four  rail- 
roads. And  as  is  well  known,  others  are  looking  that  way;  and 
at  no  distant  day  will  be  extended  north  and  south,  east  of  the 
river,  through  this  proposed  Judicial  Circuit.  Moreover,  I  have 
consulted  with  gentlemen  of  this  Convention,  from  Campbell,  from 
Walworth,  from  McPherson,  and  Faulk  Counties  and  we  find  hen-. 
men  from  Walworth,  Campbell,  Potter  and  McPherson  Counties 
who  want  to  go  right  down  the  river.  Compare  the  north  half 
with  the  south  half  of  the  proposed  district  and  is  it  for  a  moment 


198  SOUTH  DAKOTA  DEBATES  1889 

contended  but  that  the  direction  of  this  Judicial  business  will  be 
down  south  on  the  middle  line  of  this  District?  Then  we  have 
better  facilities  as  we  are ;  then  running  across  the  whole  north  tier 
of  counties  of  the  Territory  and  make  Aberdeen  the  cent'er.  I 
speak  advisedly  when  I  say  that  our  people  do  not  want  to  be 
joined  to  the  Empire  counties  east  of  us.  We  know  that  if  that  is 
done  the  big  fishes  will  swallow  the  little  ones.  We  would  be  at 
the  mercy  of  the  large  populous  cities,  Mr.  President,  I  think  we 
know  positively  that  the  opposition  to  this  question  is  centered  in 
two  or  three  or  four  of  the  larger  cities,  the  centers  of  wealth,  in- 
fluence, culture  and  wisdom.  There  are  seventy -five  of  us  scattered 
all  over  this  Territory,  each  one  of  us  representing  communities 
whose  interests  are  dear  to  us.  And  while  we  wish  God-speed 
to  every  large  city  in  this  Territory  including  Sioux  Falls,  we  don't 
want  to  surrender  ourselves  body  and  soul.  What  little  minds 
we  have,  they  are  our  own  minds  and. we  propose  to  stand  right 
up  for  our  rights  and  to  say  that  it  is  right  for  us  to  have  a  square, 
compact  judicial  district  composed  of  counties  which  are  equal 
in  wealth,  influence  and  power  and  in  cities.  We  want  this  show. 
We  want  simply  what  is  right ;  what  is  just ;  what  is  honest  between 
man  and  man;  what  is  suitable  to  the  judicial  business  for  which 
we  are  now  preparing.  I  am  not  one  of  that  Committee,  but  I 
do  not  think  that  this  Convention  will  for  a  moment  question  the 
wisdom,  ability  and  honesty  of  that  Committee.  I  have  had  the 
honor  to  attend  one  or  two  of  their  meetings  and  everything  seemed 
to  be  fair  and  above  board  as  anything  could  be.  I  believe  there 
has  been  such  work  done  by  this  Committee  and  so  much  of  it, 
that  any  work  we  could  do  in  this  Convention  by  going  at  this 
business,  everyone  for  himself,  would  not  prove  anywhere  as  near 
.  satisfactory  to  ourselves  or  to  the  people  at  large.  I  do  not  believe 
it  would  be  possible  for  this  Convention  to  prepare  anything  that 
would  compare  with  this  report.  I  am  certainly  in  favor  of  adopt- 
ing the  report  of  the  Committee,  not  the  substitute. 

Mr.  Dickinson:  I  think  we  should  all  bear  in  mind  as  sug- 
gested by  Mr.  Couchman  from  Walworth  County  that  we  are  here 
as  a  Constitutional  body  and  that  we  should  seek  to  do  fairly  and 
justly  by  all  portions  of  the  Territory,  and  certainly  to  give  all 
persons  a  chance  to  be  heard  upon  these  questions  as  those  upon 
which  there  are  interested.  I  think  we  should  bear  this  in  mind 
also,  Mr.  President,  that  it  is  not  merely  a  bare  majority  that  we 


JUDICIAL  CIRCUITS  199 


should  seek  to  get  so  that  we  could  barely  carry  through  the  meas-'' 
ures  we  are  defending,  but  it  should  be  unanimous,  as  near  as  pos- 
sible. I  wish  every  measure  might  be  passed  unanimously.  In 
the  Judiciary  Committee  there  was  a  majority  in  favor  of  the  re- 
port sent  in.  Quite  a  strong  minority  favored  something  like  the- 
apportionment  of  the  Judicial  District  in  the  north  part  of  the 
Territory  and  east  of  the  river  as  outlined  in  the  one  suggested  here 
today.  I  wish  to  suggest  this;  that  in  the  apportionment  of  these 
three  districts,  while  there  may  be  a  number  of  the  counties  who  are 
satisfied,  there  are  at  least  eight  counties  out  of  the  twenty-three  rep- 
resented in  that  section  that  are  thoroughly  and  completely  dis- 
satisfied; led  to  feel  that  they  have  been  unfairly  dealt  with, 
though  perhaps  not  intentionally.  I  would  not  be  so  rash  as  to 
accuse  that  Committee  of  designedly  doing  injustice.  I  think  it 
may  be  possible,  Mr.  President,  that  in  a  desire  to  do  .well  by  the 
constituency  represented  by  the  gentlemen,  they  may  have  over- 
looked the  interests  of  the  constituency  represented  by  us.  Their 
own  interests  appear  so  large,  ours  appear  proportionately  small. 
It  would  be  a  serious  mistake  if  this  Convention  should  make 
any  apportionment  in  that  section  of  the  State,  which  would  leave 
eight  counties  so  thoroughly  dissatisfied.  It  would  leave  for  in- 
stance, in  the  district  comprising  the  Counties  of  Beadle,  Spink, ' 
Brown  and  Marshall,  which  are  very  important  counties,  dis- 
satisfied and  displeased  with  the  arrangement.  When  a  question 
is  raised  in  that  district,  it  seems  to  me  that  it  would  not  be  very 
pleasant  for  Spink  County  for  that  one  county  to  be  placed  in, — 
for  the  representatives  of  that  county  to  be  placed  in  and  associated 
in  that  Judicial  District.  Those  three  counties  could  very  con- 
sistently blame  me  for  having  brought  them  in  that  situation.  That 
the  three  counties  should  be  tied  against  their  will ;  against  their 
interests;  against  their  convenience,  and  against  tlu-ir  protests  here. 
It  seems  to  me  that  there  can  be  certainly  a  more  just,  fair  and 
reasonable  arrangement  than  that.  In  the  other  districts  repre- 
sented by  counties  towards  the  east  line  of  the  State,  the  center 
of  which  we  may  call  the  city  of  Watertown,  there  would  be  two 
counties  that  would  be  thoroughly  disstaisfied.  One  of  tlu-m. 
the  County  of  Kingsbury,  whose  representatives  are  here  and  ran 
speak  for  themselves,  and  present  petitions  and  letters  from  their 
constituents  showing  what  they  want, -with  ivtViviHT  to  the  main 
question,  I  will  say  when  I  came  here  I  had  no  particular  rare 


200  SOUTH  DAKOTA  DEBATES  1889 

which  way  we  were  assigned,  as  I  am  not  a  lawyer,  and  — and  I 
never  had  occasion  to  go  to  law.  I  never  wish  to  do  any  other 
kind  of  courting  than  that  which  I  did  when  I  won  my  wife.  It 
is  my  business,  however,  to  .represent  my  constituents  here.  I 
have  received  a  petition  signed  by  every  member  of  the  bar,  and  by 
the  leading  business  men  of  our  county,  saying  they  wish  to  go  into 
the  district  in  which  they  are  now  under  the  present  Territor- 
ial conditions;  that  is  the  counties  on  the  north  line,  Day ,  Marshall, 
Brown,  Edmunds,  McPherson,  Campbell  and  Walworth.  There  was 
perfect  unanimity  in  these  seven  counties  that  that  portion  of  the 
State  be  not  disturbed.  The  day  before  I  came  here  I  wrote  up 
to  Judge  Crofoot  and  he  said:  "We  can  do  no  better  than  endeavor 
to  secure  the  present  arrangement  of  this  Judicial  Circuit."  Judge 
Crofoot  has  no  interest  in  making  any  such  statement  as  that  as 
he  will  probably  not  remain  Judge  long.  It  would  be  for  the  con- 
venience of  those  doing  business  in  that  district, — the  convenience 
of  the  district  to  remain  as  arranged  at  present,  and  as  desired 
by  the  report  of  the  Minority  Committee.  The  Judge  said:  "I 
can  leave  Aberdeen  every  morning  and  reach  any  part  of  the  dis- 
trict." '  Suppose  he  had  to  do  business  from  Watertown,  he  must 
go  forty-five  miles  across  the  country  by  stage  one  way, — or  he 
must  go  around  by  Elrod  or  around  by  Aberdeen  arid  Redfield, — 
a  rather  expensive  and  thoroughly  inconvenient  way  of  doing  busi- 
ness. Whereas,  in  the  arrangement  proposed  by  the  substitute, 
we  have  free  access  to  all  parts  of  the  district.  I  do  not  think 
anyone  can  blame  us  for  desiring  very  much  that  arrangement. 
I  Wish  to  call  the  attention  of  the  Convention  to  the  argument 
I  heard  before  the  Judiciary  Committee.  I  think  I  have  heard 
nearly  all  the  arguments  in  favor  of  the  arrangement  recommended, 
by  the  Judiciary  Committee.  There  has  been  nothing  said  of  the 
inconvenience  of  counties.  There  is  an  element  from  outside  the 
community  interested,  or  political  aims  and  ambitions  who  desire 
to  be  cut  off  from  certain  counties  in  order  to  have  a  better  political 
field,  but  there  is  no  political  consideration  whatever  so  far  as  I 
am  aware  of,  that  dictated  the  arrangement  suggested  in  this 
substitute  motion.  We  did  not  take  into  consideration  the  fact 
that  anyone  has  a  desire  to  be  county  judge,  or  because  any  par- 
ticular city  or  county  desires  to  be  the  center.  Our's  is  a  convenient 
arrangement  to  those  interested,  to  the  tax-payers,  and  I  wish  every- 
one here  to  bear  in  mind  in  the  studying  of  their  maps,  the  propo- 


JUDICIAL  CIRCUITS  201 


sition  of  the  substitute  does  not  place  any  of  the  counties  in  any 
disadvantageous  position.  It  leaves  them  all  arranged  so  that  they 
have  as  easy  and  ready  access  by  railroad  as  they  have  at  the 
present  time.  If  it  is  not  upon  the  ground  of  convenience  that  it 
is  urged  by  them,  on  what  ground  is  it?  If  it  is  political  ground, 
is  it  the  issue  that  the  Convention  has  got  to  get  out  of  the  way? 
And  that,  too,  to  the  serious  disadvantage  of  eight  counties  in  that 
portion  of  the  State  in  order  to  further  the  political  ambitions  of 
certain  localities.  I  dislike  very  much,  Mr.  President,  to  refer  to 
such  things  as  this,  but  they  are  manifest  in  so  many  directions 
in  the  figuring  that  appears  in  these  plans  that  it  seems  absolutely 
necessary  in  order  that  we  make  no  failure  in  presenting  the  Con- 
stitution before  these  counties  for  adoption.  I  wish  to  say  further 
in  reference  to  the  main  question,  after  I  had  presented  the  op- 
position that  a  number  of  the  best  men  had  gone  to  the  members 
of  the  Judiciary  Committee.  I  have  the  assurance  that  they  were 
satisfied,  that  they  wanted  the  arrangement  proposed  to  the  west, 
that  is  Brown  County,  but  they  would  not  press  the  claim  to  our 
county  and  trusting  in  the  pledge  of  the  members  of  the  Judiciary 
Committee  that  that  would  be  the  report,  we  paid  no  further  at- 
tention to  it  until  we  found  that  it  was  too  late  to  do  anything  to- 
wards affecting  a  change.  That  the  arrangement  had  been  made 
without  my  knowledge  and  without  any  deference  to  the  wishes 
of  the  Representatives  from  Day  County.  After  that  there  was 
nothing  left  to  do  but  to  present  our  desires  before  the  Convention 
which  we  have  done  in  these  words. 

Mr.  Van  Buskirk:  This  is  the  first  office  I  think  I  have  ever 
held  in  this  Territory  and  perhaps  the  only  one  I  shall  hold  in  the 
State  of  South  Dakota;  therefore,  I  desire  to  submit  to  this  Con- 
vention some  of  the  considerations  which  moved  the  Committee 
in  making  this  report.  And  before  proceeding  to  that  I  desire 
to  allude  to  two  ideas  or  suggestions  that  were  made  prominent  by 
two  of  our  brethren  of  the  Convention.  It  has  been  said  by  my 
brother,  Couchman,  that  this  Committee  had  got  together  and  un- 
der a  pledge  had  sworn  (I  think  was  the  word)  to  hold  to  a  par- 
ticular line  of  action,  with  reference  to  this  apportionment.  If  such 
a  thing  existed,  it  certainly  did  not  come  to  my  knowledge.  I  do 
not  think  any  such  thing  ever  did  exist,  and  so  far  as  its  being  a 
political  question  as  suggested  by  Brother  Dickinson,  certainly 
I  think  as  one  of  the  members  of  the  Convention,  being  as  I  am 


202  SOUTH  DAKOTA  DEBATES  1889 

numbered  with  the  majority  with  no  more  hope  of  being  elected 
judge  in  our  district  than  one  of  the  other  members  of  the  minority  ' 
becoming  President  of  the  United  States  within  the  next  five  years, 
and  there  is  no  possibility  of  that;  therefore,  I  think,  so  far  as  I 
am  concerned,  the  members  of  the  Convention  can  say  at  least,  I 
have  not  been  influenced  by  any  political  consideration.  I  believe 
there  is  in  all  three  Democratic  attorneys  in  that  district  which  is 
proposed  here.  I  am  one  of  them  and  the  others  are  young  men, 
neither  of  whom  aspire  to  that  position.  So  I  think,  Mr.  President, 
they  will  say  at  least,  I  have  not  been  influenced  by  any  such  con- 
siderations in  supporting  this  report.  I  have  no  means  of  judging 
of  the  future  only  by  the  past,  and  judging  of  the  future  by  the  past, 
I  see  no  way  for  the  proper  administration  of  justice  only  to  divide 
these  districts  of  this  Territory  up  into  circuits  as  we  have.  It 
will  become  necessary  to  fully  understand  some  of  the  reasons  for 
this  report,  to  go  back  a  little  to  the  history  of  the  jurisprudence 
of  this  Territory.  Originally  we  had  three  judicial  districts.  I 
did  not  come  into  the  Territory  until  1883,  afterthat  we  had  four 
judicial  districts,  and  that  stretched  from  the  Missouri  river  to  the 
north  limit  of  the  proposed  State  of  South  Dakota.  The  judges 
in  these  several  districts  had  little  penchant  for  business  generally, 
because  they  were  appointed  to  stay  there  as  long  as  the  President 
would  let  them.  We  had  to  hunt  them ;  they  did  not  come  into  our 
counties  very  many  times  to  hold  court.  Well,  in  the  process  of 
time  we  got  another  district  in  the  Fifth  District,  in  which  I  have 
alwasy  practiced.  And  that  stretches  from  the  Minnesota  State 
line  to  the  Missouri  river,— over  two  hundred  miles  long  and  one 
hundred  and  fifty  miles  broad  ,  120  at  least,  all  in  one  district. 
During  that  time  the  judges  of  the  court  who  had  to  sit  in  that 
district,  notwithstanding  the  people  of  the  Territory  voted  them 
$1500  per  year  for  expenses  so  they  might  hold  their  court  throughout 
the  various  counties,  sat  down  in  the  city  of  Huron  and  we  have 
never  seen  them  but  once  or  twice  since  the  Fifth  District  has  been 
organized,  at  least  in  our  county.  Some  counties  near  Huron  had 
terms  of  five  and  six  weeks  at  a  time.  We  have  not  had  five  weeks  of 
court  in  Codington  County  since  I  have  been  there,  and  I  have  lived 
there  six  years.  Now,  when  we  come  to  consider  the  condition  of 
things  it  is  no  wonder  that  this  people  desire 'that  we  should  have  a 
Constitution  framed  here  so  that  they  could  become  organized  as  a 
state.  4  well  remember,  'twas  about  the  time  I  first  came  here 


JUDICIAL  CIRCUITS  203 


early  in  the  history  of  my  residence  in  this  Territory,  someone 
remarked:  "A  poor  man  cannot  get  justice  without  buying  it"; 
and  many  times  I  know  people  do  have  to  buy  it.  I  know  in  my 
practice  I  had  a  client  and  all  the  property  that  she  had  in  the 
world  was  siezed  in  a  chattle  mortgage,  and  she  had  a  good  defense. 
What  was  the  result?  I  had  to  go  to  the  county  seat  of  Brown 
County,  or  I  may  say  it  is  now  the  county  seat  of  Brown  County. 
I  got  the  case  transferred  to  another  court  for  trial.  Judge  Smith 
was  upon  the  bench, — I  got  my  order.  The  mortgagee  moved  to 
set  aside  this  order  on  motion.  Mortgagee  was  a  man  of  wealth, 
and  my  client  had  not  a  dollar  in  the  world.  He  served  me  with 
a  motion  to  go  down  to  the  city  of  Pierre  and  we  argued  there  that 
motion  to  set  aside  the  order  to  give  him  an  opportunity  to  set  up 
a  defense.  I  had  to  let  this  poor  man  lose  everything  he  had,  with 
which  to  earn  his  living  or  put  my  hand  in  my  own  pocket  and  buy 
railroad  tickets  and  pay  for  hotel  bills ;  I  did  it ;  I  do  not  regret  it 
today, — I  do  not  expect  pay;  this  is  mentioned  merely  as  an  il- 
lustration of  the  condition  of  things  which,  Gentlemen  of  this 
Convention,  moved  the  framers  of  the  Constitution  of  1885  to  in- 
corporate in  the  Constitution  as  adopted  a  clause  that  the  judicial 
districts  shall  be  composed  of  compact  territory.  And  your  Com- 
mittee acted  upon  that  instruction  and  we  arranged  the  Districts 
and  the  connection  with  a  view  to  an  apportionment  in  such  a  way 
that  the  people  might  reach  the  courts  and  the  courts  might  be 
near  the  people.  Well,  what  further?  It  came  to  my  knowledge 
before  I  came  here  that  a  combination  had  been  formed  to  stretch 
out  the  districts  from  the  State  line  of  Minnesota  to  the  Missouri 
river  on  the  north,  including  the  Counties  of  Grant,  Roberts,  Day, 
Marshall,  Brown,  Faulk,  Edmunds,  McPherson,  Campbell,  Walworth 
and  Potter.  On  the  other  hand,  down  somewhere  near  the  south 
line  of  this  State,  not  a  great  ways  from  the  sixth  standard  parallel, 
they  got  together  and  proposed  to  stretch  out  another  district 
two  hundred  miles  long,  from  the  Minnesota  State  line  towards  the 
Missouri  river,  for  some  reason  satisfactory  to  themselves.  They 
proposed  to  let  the  Territory  lying  between  these  two  lines  take 
care  of  itself  in  the  best  way  and  manner  that  it  could.  I  undertake 
to  say  that  when  they  undertook  to  form  a  combination  stretching 
out  the  district  in  that  manner,  it  was  a  plain  violation  of  the  Con- 
stitution under  which  we  are  acting  and  adopted  by  the  people 
on  May  last  for  our  guidance  and  control.  Well,  the  question  arose, 


204  SOUTH  DAKOTA  DEBATES  1889 

what  was  to  be  done?  A  few  attorneys,  familiar  with  the  legal 
business  of  the  whole  country,  when  appointed  on  this  Committee, 
went  to  work  to  see  how  this  matter  could  be  divided  up  the  best 
to  accomodate  the  people  and  business  of  this  State.  It  has  been 
said  here  that  it  is  easy  to  get  from  Day  county  over  to  Aberdeen. 
Now,  as  I  said,  I  had  supposed  that  the  purpose  and  policy  of  this 
arrangement  of  the  districts  contemplated  by  the  Constitution 
and  which  had  been  agreed  upon  by  the  Committee  was  to  strike 
at  the  root  of  this  idea  that  the  people  of  alarge  section  had  to  go 
for  judicial  purposes  to  Aberdeen  or  Huron.  I  supposed  that  that 
was  the  purpose  of  it.  That  the  object  in  forming  the  district  this 
way  as  my  purpose  was  to  fix  it  so  every  locality  might  rest  upon 
its  own  merits  and  divide  these  districts  so  that  we  would  not  be 
compelled  to  go  to  some  particular  locality.  My  friend  Dickinson 
from  Day  County,  says  it  is  much  easier  to  go  to  Aberdeen  than 
come  to  Watertown  and  perhaps  some  other  locality.  Let  us  look 
at  it  a  minute.  I  do  not  understand  that  the  county  seat  of  Brown 
County  is  in  Aberdeen.  It  is  true  that  temporarily  they  pre- 
vented the  moving  of  the  records,  as  I  understand  the  Supreme 
Court  of  the  United  States  has  decided  that  the  county  seat  has 
never  been  properly  removed  from  Columbia.  Now,  if  the  gentle- 
man wishes  to  go  from  his  county  to  Columbia  in  the  morning  he 
can  get  an  early  start  and  can  go  until  four  o'clock  the  next  day 
to  get  to  Columbia.  He  will  have  to  be  gone  two  days  in  spite  of 
all  he  can  do  and  if  he  does  any  business, — perhaps  three,  at  a 
distance  of  seventy  miles.  Now  again,  I  don't  know  any  reason 
that  this  Convention  should  assume  that  the  court  is  going  to  get 
down  in  a  particular  locality  and  make  everybody  go  there,  in  the 
future  as  in  the  past.  Suppose  an  attorney  wants  an  injunction. 
The  Judge  should  be  holding  court  over  in  Campbell  county  on  the 
Missouri  river.  How  long  would  it  take  him  to  go  over  there  to 
get  his  injunction  and  back  again?  About  a  week  at  the  best  he 
could  do.  Suppose  the  gentleman  from  Campbell  county  should 
conclude  his  interests  were  in  danger  and  he  wanted  an  injunction 
and  the  Judge  happened  to  be  holding  court  in  Marshall  county, 
how  long  would  it  take  him  to  go  up  there?  Probably  about  three 
days  o  go  up  there  and  back  again.  Now  then,  suppose  this  dis- 
trict shall  remain  with  Day  county  in  it  as  proposed  by  this  Com- 
mittee.' He  can  leave  his  place  of  residence  in  the  morning,  an 
if  court  is  sitting  at  Milbank,  in  Grant  county,  he  can  get  up  the 


JUDICIAL  CIRCUITS  205 


and  have  half  a  day  to  attend  to  business  and  get  home  the  same 
day.  If  the  court  is  sitting  in  Clark  county,  he  can  leave  home 
in  the  morning  and  get  down  to  Clark  before  noon  and  have  some 
time  to  transact  business  between  trains,  and  get  back  the  same 
day.  It  is  only  about  forty  miles ;  he  could  get  to  Watertown  about 
half  past  two  o'clock  in  the  afternoon,  transact  business  and  get 
back  home  the  next  day ;  and  in  either  place  he  would  not  have  any 
more  miles  of  railroad  to  cover  than  to  Aberdeen.  I  am  bound  to 
do  the  people  of  the  county  a  kindness  whether  they  appreciate 
it  or  not  and  vote  this  amendment  down,  because  they  will  then 
have  three  places  they  can  attend  court  as  conveniently  as  they  can 
at  the  county  seat  of  Brown  county.  Now,  what  interest  Marshall 
county  can  have,  I  do  not  know.  They  are  there  where  they  can 
get  blockaded  in  the  winter  season ;  that  is  conceded.  I  am  told 
that  the  purpose  of  this  was  to  place  the  people  in  the  various 
districts  that  are  organized  so  they  could  get  some  kind  of  service. 
I  have  no  way  of  judging  of  the  future  but  by  the  past,  and  my  past 
experience  in  this  Territory  and  the  exeprience  that  I  had  before 
coming  to  this  Territory,  for  I  have  been  practicing  law  about 
twenty-five  years  constantly,  is  that  these  outlying  counties  will 
always  be  neglected  where  farther  removed  from  the  larger 
counties,  that  they  do  not  get  the  same  service.  It  has  not 
only  been  true  here  in  this  Territory,  but  the  matter  of  obser- 
vation with  me  in  my  practice  before  coming  here,  and  we  have  no 
other  means  of  getting  at  it  only  to  say  that  in  the  future  it  will 
be  as  in  the  past.  Therefore,  let  us  put  these  counties  together, 
let  us  put  these  rich  counties  lying  west  and  up  and  down  the  James 
in  a  situation  where  they  can  elect  their  own  judge.  Then  they 
will  have  no  large  counties  to  control  the  smaller  ones  and  they 
will  get  equal  service  all  through  the  district.  I  know  of  no  other 
way  to  get  at  it.  These  are  some  of  the  considerations  that  have 
moved  the  Committee  to  make  this  report  that  has  been  made  here. 
The  attorneys  upon  this  Committee  have  understood  what  the 
situation  has  been  heretofore,  and  therefore  we  thought  it  was 
right  to  place  these  counties  that  have  had  no  service  at  all  in  a 
situation  where  they  would  have  a  judge  themselves  and  could  get 
the  service  they  have  a  right  to  demand,  and  which  they  would 
expect  now.  Something  has  been  said  about  the  convenience  of 
letting  from  Kingsbury  County  to  Huron.  If  the  court  should 
happen  to  be  sitting  in  the  district  over  at  Pierre  they  would  not 


206  SOUTH  DAKOTA  DEBATES  1889 

find  it  so  convenient.  It  is  only  about  thirty  miles  over  to  Brookings , 
about  thirty  miles  from  Clark,  and  about  the  same  distance  from 
Watertown.  So  they  will  have  three  counties  very  near  by  and 
if  the  Judge  should  happen  to  be  over  at  Pierre,  it  would  not  be 
convenient  for  them  at  all.  I  apprehend  that  when  this  Constitu- 
tion shall  go  into  effect,  and  our  Legislature  shall  have  fixed  the 
time  of  holding  terms  of  court,  I  apprehend  they  will  have  two 
terms  of  court  in  each  of  these  counties  and  perhaps  a  law  term. 
I  do  not  know  any  particular  reason  why  the  gentlemen  have  got 
to  go  out  of  their  own  county  to  attend  to  their  business.  I  have 
practiced  law  for  a  period  of  twenty  years  in  the  First  Judicial 
District  of  Wisconsin,  with  a  very  large  practice.  During  all  that 
time  I  never  had  to  go  out  of  my  county  but  twice  to  argue  a 
motion.  I  apprehend  that  when  these  gentlemen  come  to  get 
their  courts  organized  so  that  the  judges  are  responsible  to  the 
people,  they  will  never  have  to  go  out  of  their  counties  to  argue 
their  motions.  It  is  merely  a  fancy  based  upon  the  iniquitious 
system  existing  in  this  Territory  at  the  present  time.  Again, 
under  this  Constitution  the  Legislature  may  confer  the  power  of 
Judge  of  Chambers  upon  the  County  Courts.  That  was  done  in 
Wisconsin.  There  was  but  one  solitary  order  that  the  Judge  could 
not  grant, — he  could  not  grant  a  new  trial.  There  was  not  another 
motion  that  the  judge  had  not  the  power  to  hear  and  determine. 
It  was  not  necessary  to  go  out  of  the  county  to  argue  a  motion; 
and  that  would  be  the  result  here.  You  woxild  not  have  to  go  out 
of  your  county  to  argue  your  motion.  It  is  entirely  a  mistaken 
idea  that  the  people  of  one  county  are  going  to  be  compelled  to 
go  to  other  judicial  districts  as  heretofore.  For  instance,  a  gentle- 
man may  want  an  extension  of  ten  or  fifteen  days  to  file  a  complaint 
in  the  case.  All  he  has  to  do  is  to  step  over  to  the  office  of  the 
county  court  and  get  his  order.  If  he  wants  to  make  a  complaint 
more  definite  and  certain  he  can  go  before  the  county  court  and 
ask  for  an  order,  so  if  he  wants  an  injunction  the  Legislature  may 
confer  the  power  here  as  there,  under  a  similiar  Constitution  for 
him  to  grant  injunctions.  What  would  you  go  away  from  home 
for  under  these  conditions?  It  is  just  simply  a  fancy  based  upon 
the  iniquitious  condition  of  things  that  is  existing  in  this  Territory, 
and  which  will  not  exist  any  longer  than  the  moment  you  get  a 
judge  that  is  dependent  upon  the  will  of  the  people  for  his  position. 
Mr.  Matson:  I  am  not  given  to  speech  making  yet  I  ask  the 


JUD  CIAL  CIRCUITS  207 


indulgence  of  the  body  for  a  few  minutes.  If  I  were  anxious  for 
newspaper  notoriety  and  capable  of  it,  there  is  doubtless  material 
for  a  first  rate  speech.  If  I  felt  disposed  to  give  full  vent  to  the 
feeling  of  indignation  with  reference  to  certain  matters  in  this  con- 
nection, I  think  now  is  my  opportunity,  but  I  have  no  disposition 
to  make  a  speech.  I  certainly  am  not  disposed  to  question  the 
purpose  of  any  member  of  the  Judiciary  Committee  because  I 
know  of  one  instance  they  were  imposed  upon.  I  feel  that  if  I 
had  been  a  member  of  that  Committee  I  would  resent  it.  I  am  not 
disposed  either  to  speak  here  against  the  expressed  wishes  of  people 
in  Dakota — people  whom  I  do  not  represent.  I  simply  want  to 
make  a  statement  with  reference  to  the  feelings  of  the  people  I 
do  represent  in  order  that  their  wishes  may  be  known, — I  will 
allow  them  to  speak  for  themselves.  During  the  first  week  of  the 
Convention,  in  order  that  I  might  act  intelligently  in  reference 
to  this  matter,  I  wrote  to  a  gentleman  in  Kingsbury  county  asking 
him  to  ascertain  the  wishes  of  the  attorneys  in  reference  to  the 
judicial  districts.  I  received  for  a  reply  something  like  this,  in 
substance:  "I  have  seen  some  of  them  but  they  do  not  seem  to 
care  how  the  matter  goes.  Have  nothing  to  suggest."  With  that 
reply  I  rested  perfectly  easy  until  the  Committee  had  got  well  under 
way,  and  I  saw  that  the  members  from  the  different  portions  of  the 
State  were  considerably  exercised  over  their  actions.  I  thought 
it  very  strange  that  our  people  were  so  unconcerned  so  I  went  to 
the  Chairman  of  the  Committee  and  asked  if  a  ccmmunication  had 
been  received  from  Kingsbury  County.  "  He  said,  "Why,  yes,  there 
is  a  petition."  I  thought  it  was  a  little  strange.  So  I  went  to  the 
gentleman  who  had  the  petition  and  asked  if  I  might  see  it.  He 
let  me  have  it  and  I  read  a  petition  signed  by  two  gentlemen  who 
claimed  to  be  the  Chairman  and  Secretary  of  a  meeting.  The 
County  Treasurer  of  our  county  was  upon  the  grounds  at  the  time 
and  he  said,  "That  thing  is  a  fraud",  and  "Such  a  meeting  never 
was  held."  That  was  stated,  in  substance,  before  the  Judiciary 
Committee.  I  received  a  telegram  which  I  will  read:  "Watson  and 
Schenain  were  the  only  persons  at  pretended  meeting  of  Bar  which 
asked  that  Kingsbury  be  attached  to  Codington.  Every  other 
person  seen  asks  to  go  with  Beadle. 

JOHN  A.  OWEN, 

J.  C.  GIBSON,  Abstractor, 

THOS.  H.  RUTH,  Mayor." 


208  SOUTH  DAKOTA  DEBATES  1889 

In  addition  to  that  they  sent  a  petition  of  remonstrance  which 
I  will  read: 

To  THE   MEMBERS   OF  THE   Sioux   FALLS   CONSTITUTIONAL  CON- 
VENTION: 

The  undersigned  attorneys  and  business  men  of  Kingsbury 
County  would  respectfully  represent  that  they  are  opposed  to,  and 
earnestly  protest  against  being  included  in  the  Third  Judicial  Dis- 
trict for  the  reason  that  the  railroad  facilities  of  said  Circuit,  so  far 
as  they  affect  Kingsbury  County,  are  so  limited  that  it  would  put 
the  people  of  said  county  to  great  inconvenience  and  expense  to 
reach  other  counties  in  said  Circuit.  And  we  further  represent 
that  we  are  in  favor  of  a  circuit  composed  of  the  counties  of  Kings- 
bury,  Beadle,  Hand,  Hyde,  Hughes  and  Sully,  or  a  similiar  circuit. 

B.  A.  DUNLAP,  Merchant, 

THOS.  H.  RUTH,  Cash.  Kings.  Co.  Bank, 

D.  H.  LOFTUS,  Merchant, 
H.  J  HAMILTON,  Merchant, 
W.  E.  BROADBENT,  Merchant, 
S.  B.  OWEN,  J.  P. 

WILL  H.  RUTH,  Asst.  Cash  King.  Co.  B. 
J.  C.  GIBSON,  Abstractor, 
R.  N.  BUNN,  Dep.  Co.  Treas., 
GEO.   C.   DURKEE,   County  Auditor, 
A.  C.  HANSON,  Register  of  Deeds, 
V.  F.  DAVIS,  Dep.  Register  of  Deeds, 
PHILIP  LAWRENCE,  Probate  Judge, 
A.  W.  MULLEN,  Postmaster, 

E.  S.  Johnson,  Atty., 
A.  THOMAS,  Atty. 

C  L.  DEWEY  Clerk  Dist  Court  Kings- 
bury  County, 

t  A.  N.  WATERS,  Attorney, 

G.  C.  BRADLEY,  Druggist, 

F.  R.  JEWELL,  Merchant, 
D.  R.  WILLISON,  Jeweler, 
GEO.  B.  WILMARTH,  Merchant, 
D.  W.  WILMARTH,  Merchant, 
HOPP  &  MCDONALD,  Publishers, 

C.  H.  TIHKHAM,  Merchant, 

C.  P.  INGALLS,  Deputy  Sheriff. 
R.  S.  GLEASON,  Co.  Supt., 
P.  W.  MC.KELLER,  Physician, 
W.  L.  SEELYE,  Insurance, 

J.  CARL  S ,  Abstractor. 

It  was  signed  by  thirty-one  of  our  people,  representing  bank- 
ing intsitutions,  merchants  and  people  in  the  vicinity  of  the  city. 


JUDICIAL  CIRCUITS  209 


We  have  simply  let  these  documents  speak  for  themselves;  we  only 
speak  with  reference  to  Kingsbury  County.  I  may  not  be  able 
to  speak  intelligently  on  this  question,  for  the  reason  that  I  never 
practiced  law,  not  even  as  a  client.  So  far  as  I  am  personally 
concerned,  it  is  absolutely  immaterial  to.me  as  to  how  these  districts 
are  formed.  I  do  feel  in  duty  bound  to  represent  my  people  in 
this  matter, — they  have  put  these  papers  in  my  hands  to  be  used 
here,  publicly  in  the  Convention.  I  think  in  justice,  I  ought  to 
say  further,  there  are  no  lawyers  in  our  town  in  Kingsbury  county, 
the  only  lawyer  who  does  business  in  our  village  resides  in  Beadle 
County,  just  over  the  line.  Our  town  is  in  both  counties.  This 
lawyer  in  Beadle  County  wrote  me,  but  I  have  given  it  no  consider- 
ation for  the  reason  that  he  is  on  the  Beadle  County  side  of  the 
line  and  not  in  the  district  that  I  represent.  I  also  have  a  letter 
from  a  gentleman  of  Iroquois  who  requested  that  we  do  not  "shoe- 
string" these  districts,  on  the  basis  to  have  them  as  compact  as 
possible,  of  course,  his  idea  was, — to  make  the  matter  of  expense 
and  time  as  convenient  as  possible  for  the  people  He  left  it  to 
me  that  they  cannot  go  to  Watertown  if  they  had  any  occasion 
to  go  to  the  legal  center  and  transact  business,  short  of  three  days. 
While  they  can  go  to  Huron  and  return  in  one  day,  and- have  the 
whole  day  to  transact  business. 

Mr.  Da  vies:  I  do  not  want  to  take  more  than  my  portion 
of  the  time  in  this  matter.  I  forgot  something  in  the  early  part 
of  the  discussion.  I  have  with  me  documents  from  members  of 
the  Bar  of  the  northwest  counties,  interested  in  this  matter  which, 
if  necessity  compels  me,  I  will  bring  forward  before  the  Convention. 
I  do  not  think  they  will  be  at  all  necessary.  I  will,  however, 
intimate,  they  are  private  communications,  but  if  they  become 
needful  I  will  read  them.  They  are  from  attorneys, — I  am  an 
attorney  myself  practicing  in  that  district — from  ex-Judges 
anil  ex-District  Attorneys,  and  from  Clerk.s  of  Court.  I  have  them 
with  me  in  my  pocket  if  they  are  wanted.  I  do  not  think  it  will 
be  necessary  to  produce  these  documents  to  sho\v  fully  the  desires 
of  the-  people  in  that  particular  district.  With  reference  to  the 
convenience  of  going  to  Aberdeen,  it  is  not  convenient  to  have  to 
practice  law  before  the  Judge  at  Aberdeen.  Judge  Crofoot,  who 
is  a  very  able  and  competent  judge,  comes  to  Ipswich  to  bold  court. 
and  goes  home  to  sleep  nights.  If  we  had  our  own  district  and  our 
own  judge,  who  would  be  on  the  ground  at  all  times  there  are 


210  SOUTH  DAKOTA  DEBATES,  1889. 

times  when  a  matter  of  threeminutes  or  five  minutes  will  enab'e  a 
man  to  go  home  Saturday  night  with  eight  or  ten  witnesses  instead  of 
staying  at  the  county  seat  at  great  expense.  It  is  not  convenient 
for  any  other  counties  but  Brown  County  to  come  to  Aberdeen  to 
do  judicial  business  with  the  judge  residing  out  of  that  district 
and  going  home  to  sleep  nights,  no  matter  who  he  is,  or  how  good 
a  judge  he  is,  it  is  a  matter  of  great  inconvenience  to  all  the  resi- 
dents of  that  district. 

Mr.  Sherwood:  I  do  not  desire  to  make  a  speech,  but  I  do 
desire  to  call  attention  to  two  or  three  matters  in  relation  to  the 
judicial  districts  as  they  are  now,  or  rather  as  they  were,  in  con- 
nection with  some  things  that  have  been  said  by  those  who  oppose 
the  report  of  the  majority  of  the  Committee.  I  will  say,  that  as 
a  member  of  the  Judiciary  Committee,  I  believe  it  was  the  honest 
effort  on  the  part  of  every  member  of  that  Committee,  to  consider 
only  the  interests  and  welfare  of  the  people  interested  in  the  sub- 
division of  this  Territory  into  judicial  districts.  If  there  was  any 
effort  upon  the  part  of  any  man  to  fix  a  district  for  any  judge 
or  any  individual,  I  am  not  aware  of  that  effort.  If  there  was  any 
compact  or  anyone  sworn  to  it,  I  am  not  aware  of  that  fact.  But, 
as  my  friend  Van-Buskirk,  who  comes  from  the  Codington  County 
Bar  and  is  in  the  same  judicial  circuit  as  myself,  has  said,  before 
we  left  our  homes,  we  understood  that  a  meeting  had  been  held 
in  Aberdeen  at  which  an  agreement  was  made  to  change  our 
three  or  four  judicial  c'rcuits  into  three  circuits,  with  one  center  at 
Aberdeen,  and  one  center  at  Brookings,  and  one  center  somewhere 
else.  Now,  as  far  as  Mr.  Matson  is  concerned,  I  desire  to  state  one 
thing,  that  he  has  stated  the  matter  as  I  understand  it;  there  is 
no  question  about  it  at  the  present  time.  But,  one  more  thing, — 
when  the  Committee  acted  upon  the  matter  they  had  before  them 
a  petition,  a  copy  of  which  I  have  in  my  possession,  which  was  in 
substance  as  follows:  At  a  meeting  of  the  Kingsbury  County  Bar, 
held  at  the  office  of  James  F.  Watson,  Mr.  Watson  was  elected 
Chairman  on  motion,  and  the  following  resolution  was  adopted: 
RESOLVED:  That  it  is  the  sense  of  the  Bar  of  Kingsbury  County 
that  no  change  be  made  in  the  Judicial  Circuit  as  fixed  in  1885.  I 
also  have  in  my  possession  a  letter  to  which  the  gentleman  has 
referred ;  as  he  has  stated  to  you  when  the  Committee  acted  upon 
this  matter,— the  Judiciary  Committee,— they  had  before  them 
this  letter  from  a  banker  of  Iroquois  and  this  petition ;  that  was  at 


JUDICIAL  CIRCUITS  211 


that  time  before  them  from  Kingsbury  County ,  with  the  exception  of 
the  incorporated  statement  of  the  County  Treasurer  of  Kingsbury 
County,  who  appeared  before  the  Committee,  and  said  it  was  not 
the  wish  of  the  people  of  Kingsbury  County.  So  much  then,  for 
that.  I  think  I  stated  it  accurately  concerning  the  two  parties 
who  represented  that  Kingsbury  County  wishes  that  the  Judicial 
Circuit  chould  remain  as  it  was  under  the  Constitution  of  1885. 
It  has  been  stated  that  Judge  Crofoot  says,  that  the  district  could 
not  be  bettered  as  it  now  stands;  I  desire  to  say  this,  that  all  that 
country,  Roberts,  Day,  Marshall,  and  west,  Potter,  and  that  Grant 
and  Roberts  Counties  have  sent  down  petitions  which  I  hold  in 
my  hands  (a  letter  from  Grant  County)  signed  by  every  member 
of  their  Bar,  requesting  that  they  be  left  in  the  third  district  as 
arranged.  It  is  said  by  my  friend  from  Day  County  that  should 
the  twenty-three  counties  comprised  in  the  three  or  four  Judicial 
Circuits  be  divided  as  suggested  by  the  majority  of  this  Committee, 
that  there  will  be  eight  counties  wholly  or  diametrically  opposed 
to  that  apportionment.  I  say  that  should  the  district  be  ap- 
portioned as  provided  by  the  substitute  there  would  be  fourteen 
counties  diametrically  opposed  to  such  apportionment. 

Voices:     Name  them! 

Mr.  Sherwood:  You  name  yours  and  I  will  name  mine.  It 
i  a  question  now  of  whether  you  will  displease  the  majority  or 
the  minority.  As  I  understand  it,  it  becomes  our  duty  to  divide 
these  two  Territories  into  circuits  as  near  compact  in  form  as  pos- 
sible. Now,  what  have  they  done?  They  have  formed  a  triangle 
with  four  counties  at  the  base  and  one  county  at  the  point  of  it. 
What  is  the  object  of  that?  What  is  the  particular 
reason?  Why,  of  course,  no  political  reason, — not  at  all.  Still 
I  am  by  taking  Aberdeen  as  the  center",  that  if  the 
two  counties  on  the  east  should  vote  with  Aberdeen,  under  the 
apportionment  of  delegates  made  at  the  last  Convention, — if  the 
two  counties  on  the  east  of  Aberdeen  vote  with  Brown  County, 
there  is  a  majority  of  votes  in  that  Circuit ;  if  with  the  west,  there  is 
a  majority  of  votes  in  that  section.  In  other  words,  throwing  in- 
fluence or  weight  at  the  center,  or  Brown  County,  on  either  side 
will  carry  it  in  any  way  they  choose.  Of  course,  that  is  not  political . 
I  also  observed  that  in  every  motion  that  came  before  the  Judiciary 
Committee,  for  the  other  circuit,  that  the  vote  of  Beadle  County 


212  SOUTH  DAKOTA  DEBATES  1889 

with  the  vote  of  the  counties  to  be,  resulted  just  as  they  proposed 
in  general.  I  think  that  is  the  case  now. 

Now,  if  there  is  anything  political  in  any  of  these  moves,  I 
see  how  that  circuit  whereby  one  county  standing  in  the  center  can 
control  the  circuit  by  combining  with  either  end.  I  do  not  say  that 
there  is  any  political  design  for  that  purpose.  I  say  further  that 
when  we  first  commenced  arguing  this  question,  the  only  argument 
offered  before  this  Committee  was  to  make  the  circuit  as  nearly 
accessible  as  possible  by  means  of  lines  of  railroads.  But  when 
the  proposition  was  made  to  put  Brown,  Spink,  Beadle  and  Miner 
Counties  together, — and  it  was  where  two  lines  of  railroads  ex- 
tended into  that  circuit,  then  they  said:  "We  do  not  wrant  that 
under  any  circumstances,"  whatever.  If  we  are  to  act  as  we  have 
not  acted  heretofore,  so  that  they  arrange  states  for  the  convenience 
of  the  cities,  instead  of  the  convenience  of  the  people,  then  the  re- 
port of  the  minority  should  be  adopted.  If  we  are  to  arrange  for 
the  people  instead  of  the  city  of  Aberdeen  and  the  city  of  Huron, 
then  the  report  of  the  majority  should  be  adopted. 

The  President:     Is  the  Convention  ready  for  the  question? 

Mr.  Davies:     I  ask  that  the  report  be  read. 

Mr.  Dickinson:  I  desire  to  correct  one  misapprehension  that 
these  gentlemen  are  laboring  under,  that  is  with  reference  to  the 
Aberdeen  meeting  and  the  combination  formed  there.  This  is  the 
first  I  have  heard  of  that  suggestion. 

Before  we  came  down  here,  the  delegates  coming  down  here 
that  would  have  to  go  through  Aberdeen  to  come  here,  I  presume, 
received  a  card  as  I  did,  signed  by  the  delegates  from  Brown 
county,  asking  us  to  meet  at  the  parlors  of  the  Sherman  House 
the  night  before  we  came  down.  Accordingly  I  was  there  and 
went  into  a  ro<3m  and  was  introduced  and  we  shook  hands  all 
round  and  arranged  as  to  what  train  we  should  take  to  come  down 
here  and  then  adjourned,  without  date.  That  is  all  the  combi- 
nation I  know  anything  about.  In  reference  to  the  judicial  mat- 
ters nothing  thought  of  particularly  at  that  time  that  I  was  informed 
of  at  least.  So  far  as  my  knowledge  goes,  Aberdeen  has  not  "poked 
her  nose"  as  is  sometimes  said,  into  this  business  at  all.  Nobody 
has  said  anything  except  the  delegates  who  had  their  duty  to  per- 
form in  this  matter,  no  attempt  to  control  in  the  interests  of  Aber- 
deen or  Brown  County.  There  are  a  good  many  other  things, 
it  seems  to  me  ought  to  be  said.  I  want  to  allude. to  just  one  thing 


JUDICIAL  CIRCUITS  213 


more, — that  is  the  assertion  made  that  fourteen  counties  would  be 
opposed  to  the  arrangement  if  the  substitute  was  carried.  There 
might  be  three  counties  that  would  be  in  some  measure  incon- 
venienced, but  none  of  them,  I  think,  but  what  would  be  more  con- 
veniently situated  that  the  balance  of  the  counties  would  under  any 
other  arrangement.  The  counties  I  think,  as  conveniently  ar- 
ranged as  they  could  possibly  be  arranged, — as  the  plan  proposes. 
It  seems  to  me  the  convenience  of  the  entire  State  should  be  kept 
in  mind.  The  spirit  of  the  arrangement  was  that  it  should  be  made 
convenient  of  access  from  all  parts  of  the  counties  and  district. 

Mr.  Hole:  Mr.  Chairman  and  Gentlemen  of  the  Convention: 
When  we  were  elected  and  sent  to  Sioux  Falls  as  delegates,  our  duties 
then  were  to  represent  our  constituents  in  our  individua1  districts. 
When  we  were  appointed  on  Committees  in  that  Sioux  Falls  Con- 
vention, our  duties  then  were  to  serve  the  Convention  and  to  forget 
that  we  were  representing  merely  one  county,  or  one  particular 
place.  That  was  the  position  to  be  .taken  upon  these  Committees. 
I  will  say  that  in  the  main,  that  has  been  respected, — I  will  say 
that  the  Committees  have  arranged  these  districts  to  the  satisfac- 
tion of  everyone  of  the  delegates  from  those  districts  every  single 
one  of  them ,— e very  one  of  them  were  consulted  and  we  were 
acting  the  part  of  repre:entatives  of  a  dignified  body. 

But  taking  this  map,  we  have  a  member  of  this  Committee 
there,  one  there,  and  one  there  (indicating)  and  as  you  see,  there 
is  no  power  that  can  reconcile  their  claims. 

This  member  gives  his  district  and  this  member  gives  his, 
(indicating  on  map).  It  was  probably  unfortunate, — uninten- 
tionally so,  bu  unfortunate  that  they  happened  to  be  placed  right 
along  together.  They  could  hardly  do  otherwise  than  look  out 
for  self-interests ;  it  was  natural  remembering  that  they  came  here 
representing  individual  constituents  forgetting  that  when  appointed 
upon  committees  they  ceased  to  represent  their  constituents  alone 
but  fairly  and  honorably  to  represent  all  of  Dakota.  That  much 
for  that  one  point;  I  think  that  is  the  keynote.  It'all  hinges  with 
the  north  half  of  South  Dakota.  The  whole  disturbing  trouble 
comes  out  of  the  desire  to  fix  this  in  the  Committee, — at  least  it 
ooks  that  way  to  me.  The  purposes  of  these  Judicial  Districts 
is  to  satisfy  and  accomodate  the  people  in  their  law  business,  in 
their  legal  difficulties ;  that  is  the  purpose  of  it ;  let  them  be  equitably 
and  fairlv  divided. 


214  SOUTH  DAKOTA  DEBATES  1889 

When  we  came  here  it  was  talked  all  around  by  almost  every 
lawyer  in  the  Convention  that  we  had  not  districts  enough;  that 
there  were  not  sufficient  districts;  but  as  soon  as  these  districts 
were  formed  I  find  that  that  was  forgotten.  In  the  east  we  divided 
it  in  this  way,  (indicating  on  map)  leaving  that  one  district  more 
business,  as  I  am  informed  by  members  who  are  acquainted  with 
th  facts, — more  business  in  that  one  district  than  both  the  others; 
more  than  any  other  one  district. 

The  political  feature  as  referred  to  by  my  friend  from  Clark  is 
an  amusing  one;  of  course  there  was  no  politics  in  what  they  have 
outlined,  going  on,  he  shows  that  Aberdeen  makes  a  center,  and 
Huron  makes  a  center.  I  presume  as  soon  as  he  studied  Long's 
Legislative  Hand  Book  he  maybe  satisfied  he  knows  that  Kingsbury 
and  Beadle  Counties  have  at  least  a  majority.  ;  I  j*  fe  |i 

Mr.  Sherwood:     I  said  Miner  and  Kingsbury. 

Mr.  Hole:  That  question  is  not  before  the  Convention;  Miner 
has  never  been  mentioned,  never  been  thought  of  in  this  connection, 
because  Miner  objected  and  would  not  come"  in  and  plainly  said 
we  are  satisfied.  That  much  for  the  politics  of  the  whole  arrange- 
ment. Yet,  gentlemen,  you  will  bear  me  out  today  that  I  am  not 
as  much  of  a  politician  as  my  friend  from  Clark  (Mr.  Sherwood) 
and  I  ask  that  you  look  this  all  over  before  you  take  what  has  been 
stated  for  facts. 

Another  thing;  you  say  that  these  districts  must  be  in  compact 
form  ;  it  took  a  great  while  to  pound  into  me  the  idea  that  a  district 
one  hundred  and  thirty  miles  long  and  thirty-six  miles  wide  was 
compact;  I  can't  see  that  it  is  compact;  the  idea  of  putting  a  dis- 
rict  in  that  shape!  As  it  now  stands,  so  far  as  convenience  is 
concerned,  I  will  state  this,  and  I  do  no  fear  contradiction  or  dis- 
pute, that  in  this  district  as  arranged,  making  these  seven  counties 
as  on  ?  district  makes  a  district  that  when  you  come  to  go  from 
one  place  to  another  that  cannot  be  made  up  in  matters  of  con- 
venience any  more  desirable,  by  any  other  manipulation  of  these 
counties.  Distance  in  miles  does  not  figure  it;  it  is  time  taken  to 
get  from  one  court  to  another.  That  is  the  fair  equitable  consider- 
ation; not  the  consideration  perhaps  that  a  railroad  runs  the  entire 
length  of  the  district  and  through  every  county  in  the  district. 
From  our  county  you  can  reach  every  point  in  the  district,  every 
day.  In  Brown  County  you  have  the  same  result,— in  the  county 
of  Codington,  Hamlin,  Deuel,  Brookings  you  have  the  same  result. 


JUDICIAL  CIRCUITS  215 


And  so  far  as  stating  the  ground  is  concerned,  I  will  defy  contra- 
diction of  this  statement,  that  outside  of  political  and  little  personal 
matters,  to  have  the  report  carried  through,  the  Counties  of  Cod- 
ington,  Hamlin,  Clark,  Brookings  and  Deuel,  Grant,  never  have 
complained  of  this  District.  Spink  has  some  reason  to  remonstrate 
and  they  can  sympathize  with  us.  Potter,  Faulk,  Sully,  Hyde  and 
Hughes  Counties,  never  have  objected  because  they  are  compact 
in  form.  The  people  of  Kingsbury  County  may,  but  they  do  not 
here  today.  I  may  state  to  you  that  Beadle  County  will  be  satis- 
fied as  it  is  best  that  it  seems  possible  to  get ;  I  will  say  further  that 
Hand  County  is  satisfied  and  wants  that  arrangement.  I  will  also 
say  that  Hyde  County  is  satisfied  and  wants  that,  and  so  far  as 
Hughes  County  is  concerned  it  has  not  been  heard  from.  Faulk 
County  has  no  reasons  for  dissatisfaction  because  they  can  reach 
every  other  point  conveniently  so  far  as  judicial  services  are  con- 
cerned. The  purposes  and  duties  of  this  Convention  is  not  to 
make  up  a  circuit  for  any  particular  person  or  any  particular 
clique,  but  to  make  up  a  circuit  that  would  serve  the  common 
people  and  give  them  what  they  demand.  Give  them  an  ex- 
peditious and  convenient  district  in  which  to  do  business.  The 
railroad  facilities  in  making  up  these  districts  have  been  studied 
in  T  articular,  and  it  was  not  made  up  on  the  spur  of  the  moment, — 
it  has  been  worked  over.  That  was  kept  in  mind  from  the  first. 
I  do  not  believe  that  this  Convention,  while  it  has  got  the  power 
to  do  it,  will  do  anything  other  than  what  the  original  motion  con- 
templates. Now  you  havj.  four  counties  that  have  more  business 
than  all  the  north  districts  in  which  there  is  not  one  single  man 
satisfied, — not  one  single  delegate,  if  I  may  use  their  words,  not 
one  single  delegate  satisfied.  I  have  talked  with  the  members 
from  Spink  County,  Chairman  of  the  Committee,!  have  also  talked 
with  the  other  men,  and  they  all  say  it  does  not  suit  the'm  at  all. 
Now  I  am  confident  that  this  Convention  will  not  allow  it  to  per- 
petrate this  huge  mistake  and  force  this  district  upon  the  people, 
in  which  there  is  not  one  assenting  voice.  I  know  you  will  not  do 
it.  You  are  here  this  afternoon  in  the  capicitv  of  a  jury, — you 
are  listening  to  what  is  said  upon  either  side,  then  make  up  your 
minds  and  do  what  is  right,  what  is  fair,  and  that  is  all  that  is  asked 
at  your  hands.  We  do  not  wish  any  prejudice,  any  petty  jealousy, 
any  of  the  little  feelings  that  we  may  have  engendered  bv  con- 
tending over  this  thing  or  when  we  get  excited  sometimes  we  do, — 


216  SOUTH  DAKOTA  DEBATES  1889 

to  enter  into  this  consideration  at  all.  These  things  ought,  from 
this  moment,  to  be  entirely  forgotten;  you  are  to  act  as  jurors;  you 
are  to  do  your  duty  as  jurors.  I  am  satisfied  that  you  will  do  ex- 
actly what  is  right  in  this  matter. 

Compactness  of  these  districts  is  another  matter  I  wish  to 
call  your  attention  to  just  a  moment.  The  idea  of  calling  this 
compactness.  ^  There  is  not  one  element  of  compactness  in  a  dis- 
trict 130  miles  long  and  30  miles  wide.  I  do  not  think  that  it  is 
necessary  to  be  argued.  I  will  say  yet  that  the  districts  as  made 
will,  I  think,  satisfy  the  people  of  the  district. 

Mr.  Van  Buskirk:  I  want  to  reiterate  two  things  that  the 
gentleman  just  on  the  floor  has  made.  He  said  there  is  more  busi- 
ness in  that  Jim  River  District  than  all  of  the  others.  I  have  had 
occasion  to  visit  the  courts  of  every  county  except  Roberts,  lying 
east  of  the  west  line  of  Beadle,  Spink  and  Brown  Counties.  I  am 
familiar  with  the  business.  I  know  whereof  I  speak.  I  know 
there  is  no  business  there  in  those  districts  that  compares  with  the 
Empire  District  to  the  west  of  that  section. 

Another  thing,  gentlemen  of  this  Convention,  there  is  some- 
thing very  serious  about  making  a  district  one  hundred  and  twrenty 
miles  long;  I  have  counted  up  the  townships;  it  is  120  miles  long; 
counting  up  the  townships  from  the  west  line  of  Spink  County  to 
the  Minnesota  state  line,  it  is  a  little  longer  than  the  other  one;  it 
is  large  enough  to  make  a  state  over  120  miles  long;  talk  about 
compactness,  and  look  at  it! 

Mr.  Hall:  With  regard  to  the  matter  of  the  amendment  I 
think  there  are  counties  that  should  be  consulted  in  regard  to  form- 
ing that  kind  of  .a  district  as  well  as  other  matters. 

In  Hand,  Hyde,  Hughes,  Sully  and  Potter  and  Faulk  Counties 
they  are  not  satisfied ;  and  I  do.  not  think  a  single  one  of  the  dele- 
gates are.  They  claim  Hyde  as  being  favorable;  I  wish  to  read 
portions  of  a  letter  I  received  from  an  attorney  at  Highmore  in 
regard  to  ithis  matter:  "I  favor  a  judicial  district  stretching  east 
taking  in  Kingsbury  county  ;  it  is  not  very  nattering  that  they  have 
since  signed  a  paper  cancelling  their  former  signatures,  which  paper 
I  will  forward  to  you  tomorrow.  Our  people  here  are  united  upon  a 
district  lying  in  a  body,  and  cut  off  the  necessity  of  attorneys  run- 
ning to  Huron  for  court  business.  We  favor  the  report  as  made  by 
the  majority  of  the  Judiciary  Committee  and  look  to  you  to  pro- 
tect our  interests  in  this  direction." 


JUDICIAL  CIRCUITS         •  217 


It  seems  Beadle  County  or  somewhere  else  'has  sent  a  man 
down  in  the  adjoining  counties  for  the  purpose  of  getting  signatures. 

I  will  read  a  portion  of  another  letter:  "For  Heavens  sake 
don't  let  Huron  own  us  any  longer".  Signed,  W.  A.  Perkins. 
(Laughter). 

The  letter  shows,  Mr.  President,  that  the  people  of  this  dis- 
trict are  opposed  to  the  arrangement  as  suggested. 

Mr.  Anderson:  I  presume  it  becomes  necessary  for  me  to 
straighten  myself  out  a  little;  I  might  get  somewhat  mixed  up.  I 
came  here  under  the  impression  that  I  was  a  representative  from 
the  Eleventh  District.  Almost  immediately  after  coming  here 
I  was  credited  with  being  a  Huron  man ;  the  next  thing  I  was  charged 
with  being  a  Republican ;  I  can  stand  that  tolerably  well ;  the  next 
thing  I  was  taken  for  a  Presbyterian  preacher;  and  now,  Mr. 
Chairman,  I  am  almost  unable  to  tell  after  listening  to  the  gentle- 
man from  Beadle,  whether  I  represent  Hand  County  or  Beadle 
County. 

The  gentleman  has  stated  that  all  the  counties  pretty  much 
west  of  Beadle,  were  in  favor  of  this  substitute;  that  Hand  County 
was  in  favor  of  it,  and  Hyde  County  was  in  favor  of  it,  and  Sully 
and  possibly  Potter;  these  gentlemen  have  spoken  for  themselves 
they  have  said  to  the  Convention  they  are  not  satisfied  and  do  not 
favor  it.  I  think  I  can  speak  for  the  people  of  Hand  County  cer- 
tainly as  well  as  the  gentleman  from  Beadle.  I  say  unhesitat- 
ingly that  the  people  do  not  want  any  connection  with  Beadle 
County;  it  would  not  suit  the  people  of  Hand  County  to  be  in- 
cluded in  the  District  as  comprised  in  this  substitute;  I  shall  vote 
for  the  report  of  the  Committee  on  Judiciary ;  I  shall  vote  against 
this  substitute;  we  are  satisfied  with  the  district  as  reported  by 
the  Committee  and  expect  to  vote  for  it;  I  think  the  Committee 
has  done  a  remarkably  good  job  in  putting  up  these  districts,  par- 
ticularly the  Fifth  District.  The  District  comprising  the  empire 
counties  of  Brown,  Spink  and  Beadle,  including  the  metropolitan 
cities  of  Aberdeen  and  Redfield  and  the  Village  of  Huron.  I  think 
this  is  exceedingly  proper.  I  hope  this  Convention  will  come  to  the 
aid  of  the  rural  sections  of  these  districts  and  release  us  from  the 
grasp  of  these  cities. 

Mr.  Cooper:  I  have  been  waiting  to  hear  from  Hand  County 
before  touching  up  this  question;  I  am  glad  I  have  at  last  heard 
from  it.  About  a  week  or  ten  days  ago  the  gentleman  who  just 


218  SOUTH  DAKOTA  DEBATES  1889 

addressed  the  Convention  came  to  me  with  a  proposed  circuit 
which  read  as  follows:  Sully,  Hughes,  Hyde,  Hand,  Beadle  and 
Kingsbury,  and  perhaps  Miner  Counties.  He  told  me  last  night 
that  he  didn't  know  the  people  of  Hand  county  stood  on  this  ques- 
tion except  from  what  he  had  heard  from  that  county  since  he 
came  here.  I  have  heard  from  that  county;  I  have  it  in  black  and 
white,  signed  by  every  attorney  living  in  the  county  of  Hand;  the 
gentleman  from  Hand  County  included  saying  that  they  desire  .  to 
be  connected  in  that  district  consisting  of  Sully,  Hughes,  Hand,  Hyde 
Beadle,  and  Kingsbury,  or  a  similiar  circuit;  signed  by  every  at- 
torney, I  say  in  the  county  of  Hand,  with  one  exception,  and  the 
reason  that  he  gave  for  not  signing  it  was  this:  That  he  was  in 
favor  of  the  Circuit  proposed  in  the  substitute, — other  attorneys 
opposed  the  Circuit  proposed  by  the  majority  of  the  Judiciary 
Committee  and  that  he  was  in  favor  of  sending  this  petition-  (which 
they  afterwards  adopted)  through  the  representatives  from  that 
county,  but  the  majority  of  the  attorneys  said  that  they  desired 
that  the  petition  should  be  addressed  to  the  Constitutional  Con- 
vention of  the  State  of  South  Dakota;  and  for  that  reason  he  did 
not  sign  the  petition.  The  petition  speaks  for  itself  and'  is  sub- 
stantially in  the  following  language: 
To  THE  MEMBERS  OF  THE  Sioux  FALLS  CONVENTION: 

We,  the  undersigned  members  of  the  Hand  County  Bar,  respect 
fully  represent  that  we  learn  with  surprise,  the  boundaries  of  the 
Sixth  Judicial  Circuit  and  desire  to  enter  our  earnest  protest  against 
the  same ;  that  it  will  be  injurious  to  the  people  of  this  county  owing 
to  the  lack  of  railroad  facilities  with  which  to  reach  the  different 
portions  of  the  proposed  circuit.  And  we  further  represent  that 
all  person  or  persons  who  may  state  or  have  stated  that  the  Bar  and 
people  of  Hand  county  are  in  favor  of  the  proposed  circuit  do  not 
represent  the  sentiments  of  the  people. 

Right  in  this  connection  I  would  like  to  make  an  explanation; 
Mr.  Hole  who  came  down  here  to  represent  his  county,  and  he  met 
a  proposition  from  the  delegates  living  north  of  the  Second  Standard 
of  this  kind ;  that  this  District  should  be  composed  of  the  Counties 
of  Sully,  Hughes,  Hyde,  Hand,  Beadle,  Kingsbury,  Potter  and 
Faulk ;  brought  that  proposition  from  one  of  the  delegates  from  the 
County  of  Hand  who  sits  in  this  Convention  now ;  who  said  they 
had  counted  up  the  votes  which  would  be  in  the  Judicial  Convention 
in  that  Circuit  and  that  they  wanted  votes  enough  to  defeat  two 
counties,  Beadle  and  Kingsbury.  We  told  them  they  could  have 


JUDICIAL  CIRCUITS  219 


them  so  far  as  we  were  concerned-  we  wanted  to  be  connected  only 
with  counties  in  which  decent  members  of  the  bar  practiced  back 
and  forth.  So  far  as  the  judgeship  was  concerned,  if  Hand  County 
had  a  man  they  wanted  to  present  for  judge,  all  right,  or  if  Hughes  or 
Sully  or  any  of  them,  that  was  all  right.  We  say  if  we  cannot  get 
those  counties,  we  want  a  smaller  circuit;  if  it  is  not  necessary  to 
do  it  to  take  off  a  county,  why  let  it  be  done.  We  do  not  know 
what  the  Convention  will  do  but  this  is  practically  what  we  want; 
we  want  a  circuit  running  along  the  Dakota  Central  railroad ;  if  it 
is  necessary  to  add  to  that  circuit,  the  County  of  Potter  and  Faulk, 
or  if  it  is  necessary  on  the  other  hand  to  add  the  County  of  Buffalo 
or  the  County  of  Jerauld,  very  well.  Now,  I  say  this  came  from  the 
Bar  of  Hand  County,  themselves;  it  didn't  come  from  the  Bar  of^ 
Beadle  County,  although  I  was  there  in  Miller  on  that  day;  I  had 
nothing  to  do  with  this  petition ;  made  no  suggestions  at  all  except 
to  say  to  them  that  the  people  living  south  of  the  Second  Standard 
were  satisfied  with  their  Circuit;  that  it  wrould  be  impossible  and 
impolitic  to  take  six  counties  in  that  circuit  as  the  delegates  had 
agreed;  and  they  asked  me  when  I  went  to  Miller  on  that  day,  (I 
say  I  was  there  on  private  business ;  nothing  connected  with  the 
Judicial  Circuits)  how  it  came  that  this  Sixth  Circuit  had  been 
formed  in  the  manner  and  shape  that  it  was ;  wanted  to  know  why 
it  was  that  we  left  a  tract  east  of  them  side  by  side  with  them ;  why 
I  would  permit  anything  of  that  kind  without  raising  my  voice ; 
I  told  them  what  the  situation  was  and  they  said  with  one  voice 
we  will  petition  the  Constitutional  Convention  at  Sioux  Falls  that 
justice  may  be  done  the  people  of  this  county. 

I  say  there  is  not  a  lawyer  in  this  county,  not  a  man  in  that 
county  with  possibly  two  exceptions  that  are  in  favor  of  the  Sixth 
Circuit  as  proposed  in  the  majority  report  of  the  Judiciary  Com- 
mittee. I  say  that  it  is  not  the  evidence  I  have  presented  to  this 
Convention  as  to  the  sentiment  of  the  people  of  that  county  in 
relation  to  this  matter.  On  yesterday,  those  in  the  minority,  pre- 
presented  to  the  Chairman  of  the  Judieiary  Committee,  the  fol- 
lowing petition,  substantially: 

Sioux  Falls,  July  23,  1889. 

We,  your  petitioners  respectfully  represent  that  we  believe 
there  is  much  dissatisfaction  with  the  judicial  apportionment  as 
proposed  by  your  Committee  as  to  the  districts  made  up  of  the  fol- 
lowing counties,  to-wit:  Campbell,  Mel'lierson.  Walworth,  Ed- 
munds, Sully,  Hyde,  Hughes,  Hand,  Beadle,  Kingsbury,  Faulk. 


220  SOUTH  DAKOTA  DEBATES  1889 

Potter,  Brown,  Miner  and  Day;  and  in  order  that  full  justice  be 
done,  and  full  consideration  be  given  that  section,  we,  the  dele- 
gates within  said  territory,  respectfully  ask  that  the  proposed 
judicial  apportionment  report  as  to  those  counties  only,  be  re- 
considered. Signed  by  Dickenson.Couchman,  Hole,  Stoddard  and 
others. 

Potter,  Hughes,  Hyde,  Sully,  Hand,  Beadle  and  Kingsbury 
have  sent  petitions  and  other  papers  in  connection  with  the  matter 
and  will  be  here  tonight.  C.  G.  Hartley,  of  Hand  County,  I  have 
been  told — Hartley  now  votes  for  the  substitute.  I  have  it  over 
his  own  signature  that  the  people  of  that  county  are  opposed  to  it. 
I  understand  that  he  has  received  no  new  light  from  Hand  County 
since  yesterday.  I  have  also  some  evidence  from  the  County  of 
Hyde.  There  is  D.  A.  W.  Perkins.  I  presume  that  when  these 
gentlemen  signed  this  petition  they  knew  what  counties  composed 
the  Sixth  Judicial  Circuit ;  I  believe  when  they  signed  this  petition 
they  knew  where  were  located  the  Counties  of  Sully,  Hughes,  Hyde, 
Hand,  Beadle,  and  Kingsbury ;  I  believe  they  knew  these  things 
and  until  there  is  some  better  evidence  before  this  Convention,  then 
this  letter  from  one  single  member  of  the  Bar, — I  say  I  believe  it 
would  be  injustice  to  the  Hyde  County  Bar  to  say  that  they  did 
not  know  what  they  were  asking  for  when  they  petitioned  this 
Convention  as  they  did  upon  this  piece  of  paper,  substantially  in 
these  words: 

"We,  as  members  of  the  Bar  of  Hyde  County,  represent  to  the 
Constitutional  Convention  that  the  proposed  judicial  district  to 
which  we  are  attached  is  very  unsatisfactory,  and  will  be  very  in- 
convenient and  expensive  for  us.  We  therefore  respectfully  ask 
that  our  county  be  attached  to  Sully,  Hughes,  Hand,  Beadle, 
Kingsbury  and  Miner  counties  for  judicial  purposes." 

I  think  the  signatures  to  this  document  include  all  but  two 
attorneys  who  live  in  Hyde  County, — Mr.  Perkins  and  Mr.  Price,  who 
is  at  present  in  Bismarck ;  and  so  I  say  that  the  evidence  from  Hyde 
County  is  to  the  effect  that  they  desire  to  be  placed  in  a  judicial 
circuit  as  provided  by  this  substitute. 

A  good  deal  has  been  said  in  this  Convention  about  center  of 
Huron  and  Aberdeen,  but  I  think  if  you  look  at  the  majority 
report  you  will  find  another  center  in  Codington  or  Clark  Counties. 
I  think  if  you  count  the  votes  as  has  been  argued  before  this  Con- 
vention you  will  find  that  Codington,  together  with  the  counties 


JUDICIAL  QRCUITS  221 

north,  can  outvote  the  counties  south;  or  take  the  vote  of  Coding- 
ton  or  Clark,  with  the  vote  of  the  other  counties  south  and  they 
can  out-vote  the  counties  north.  So  that  it  is  a  law  that  cuts  both 
ways,  if  there  is  anything  in  it.  But  I  say  that  I  do  not  believe 
nhis  Convention  at  this  time  is  going  to  build  up  judicial  circuits 
in  a  manner  to  favor  any  particular  locality,  in  a  manner  to  favor 
any  particular  man  for  the  honorable  position  (I  say  the  most 
honorable  position  a  man  ever  is  elected  to  in  this  world)  that  of 
judge  of  our  courts.  I  say  I  do  not  believe  this  Convention  at  this 
time  is  going  to  cut  up  the  Territory  in  such  a  manner  as  to  entail 
endless  expense  and  endless  inconvenience  to  the  people  for  the 
purpose  of  giving  some  man  over  in  Edmunds  county  or  some 
other  county  the  fancied  advantage.  I  do  not  believe  that  this 
Convention  will  do  it. 

LetNus  look  at  these  counties  formed  into  circuits  by  this  sub- 
stitute. We  will  start  with  Day  county.  Day  county  speaks  as 
one  voice,  one  man  against  the  Third  Judicial  Circuit.  They  say 
they  have  to  travel  forty-five  miles  by  stage  in  order  to  reach  the 
center  of  the  Judicial  Circuit. 

Another  thing  I  would  like  to  call  the  attention  of  the  Conven- 
tion to  in  this  connection. 

There  must  be  something  behind  this, — there  must  be  some- 
thing rotten  about  this  matter  when  all  of  these  counties  speak  with 
one  voice  saying  they  do  not  want  to  go  into  a  judicial  circuit 
known  as  the  "Codington  Circuit".  We  hear  from  Marshall,  and 
what  does  Marshall  say?  Marshall  says,  "We  desire  to  go  into  a 
district  with  Brown  County".  Day  says  the  same,  MclMierson 
the  same,  Campbell  the  same,  Walworth  says  the  same,  Brown 
says  the  same;  Edmunds  says  they  want  a  judge  over  there  and 
that  they  cannot  vote  down  these  other  counties, — six  counties. 

If  this  proposed  circuit,  as  proposed  by  the  substitute,  has  a 
perfect  railroad  connection  with  almost  every  other  portion  of 
tlu-  (  ircuit, — atid  we  are  told  time  and  again  while  this  Committee 
a1  work,  that  they  were  opposed  to  the  circuit  including  the 
counties  of  Beadle,  Spink,  Brown,  and  Marshall.  \ow.what  do 
they  want,  and  where  do  they  want  to  go;  what  are  their  desires? 
I  say  they  told  us  they  were  opposed  to  this  cin  uit  and  I- I  • 

•ink-men  upon  the  Committee;  the  Chairman  I  have  always 
found  to  be  an  honest  man.  1  say  I  believe  it.  1  find  the  men  of 
Marshall  County  are  opposed  to  this  circuit;  Brown  county  is  op- 


222  SOUTH  DAKOTA  DEBATES  1889 

posed  to  the  circuit;  Spink  county  is  also  opposed,  and  Beadle 
county  is  opposed  to  this  circuit.  We  find  Hand  county  is  opposed 
to  the  circuit  they  are  in;  we  find  that  Hyde  county  is  opposed  to 
that  circuit  and  McPherson  county  is  alos  opposed  and  Campbell 
county  is  opposed  to  the  Circuit,  and  also  Walworth  county.  We 
find  Kingsbury  county  also  opposed  to  the  circuit  they  are  in ;  we 
find  Brookings,  Deuel,  Hamlin,  Clark,  Codington,  Grant,  Roberts, 
are  perfectly  satisfied.  We  are  willing  to  leave  them  as  they  are 
we  do  not  want  to  force  any  one  of  these  counties  into  another 
judicial  circuit.  We  say  they  have  no  right;  there  is  no  justice  in 
coming  before  this  Convention  and  asking  that  Kingsbury  county 
be  attached  to  a  circuit  it  will  take  them  three  days  to  reach  the 
center  of  that  circuit  and  come  back  home,  when  they  can  go  to 
any  portion  of  the  Judicial  Circuit  composed  of  the  counties  of 
Kingsbury,  Beadle,  Hand,  Hyde,  Hughes,  Potter,  Faulk,  in  one 
day. 

Now,  in  relation  to  the  letter  which  was  read  by  Mr.  Sherwood, 
from  Kingsbury  County.  It  seems  that  it  is  uncontradicted  that 
the  Bar  meeting,  consisting  of  two  members  of  the  Bar  only,  one 
elected  Chairman  and  the  other  was  Secretary.  That  was  the 
petition  they  presented  to  the  Judiciary  Committee  as  expressing 
the  sentiment  of  the  people  of  that  county.  I  believe,  Mr.  Presi- 
dent, and  gentlemen  of  the  Convention,  that  the  majority  of  the 
members  of  the  Judiciary  Committee  were  with  us, — were  in  favor 
of  doing  what  is  right  and  justice  so  far  as  the  people  are  concerned 
living  in  the  counties  lying  north  of  the  Second  Standard.  This 
report  is  not  signed  by  all.  Some  who  signed  it  said  they  signed 
with  a  mental  reservation  that  if  they  were  not  sure  that  these 
counties  lying  north  of  the  Second  Standard  were  not  fairly  dealt 
with  they  would  see  that  they  were  fairly  dealt  with  on  the  floor 
of  this  Convention. 

Now  in  relation  to  the  statement  that  during  the  last  five  or 
six  years  these  centers  have  monopolized  the  time  of  the  court ; 
that  the  Court  laid  around  Beadle  and  around  Brown  county  and 
that  these  outlying  counties  did  not  get  their*  fair  proportion  of 
the  services  of  the  Judge.  I  say  that  I  know  that  is  a  mistake. 
I  know  that  Codington  has  had  more  days'  court  during  the  last 
three  years, — I  know  that  Codington  county's  calendar  is  in  better 
condition  than  is  Beadle's.  I  know  that  the  county  of  Hand  is 
in  better  condition  than  Beadle  county ;  I  know  Hyde  is  in  the  same 


JUD  CIAL  CIRCUITS  223 


condition;  I  know  Spink  county  is  in  the  same  condition.  But 
there  are  gentlemen  representing  these  counties  who  are  here  and 
who  can  speak  for  themselves.  I  believe  it  is  the  desire  of  this 
Convention  to  form  these  judicial  circuits  so  that  they  will  satisfy 
as  many  of  the  people  residing  within  their  limits  as  possible. 
The  majority  report  provides  a  Fifth  Judicial  Circuit  that  is  ob- 
jected to  by  every  county  in  it.  The  majority  report  submits  to 
this  Convention  the  Sixth  Judicial  Circuit,  which  is  opposed  by  at 
least  five  or  more  of  the  counties  that  it  contains.  The  third  by 
at  least  two.  Now,  I  reiterate  that  Sully,  Hughes,  Hyde,  Hand, 
Beadle  and  Kingsbury,  lying  on  this  line  of  road  are  in  favor  of 
a  circuit  such  as  proposed  in  this  substitute.  If  I  am  in  error  I 
would  like  to  have  some  gentleman  representing  these  counties 
call  attention  of  this  Convention  to  it  in  some  way.  The  gentle- 
man who  spoke  for  Hand  county  said  the  people  were  opposed. 
Last  night  he  said  he  did  not  know  what  the  wishes  of  the  people 
were.  The  other  gentleman,  over  his  own  signature  yesterday  in 
his  own  handwriting,  said  the  people  of  Hand  county  were  op- 
posed to  the  counties  proposed  by  the  substitute. 

Mr.  Couchman  called  to  the  chair  by  the  President. 

Mr.  Hartley:  Gentlemen  of  the  Convention;  I  would  ask  the 
same  question ;  who  is  it  that  represents  Hand  county  ?  Is  it  the 
two  men  who  were  elected  or  is  it  the  gentlemen  who  were  elected 
from  the  county  of  Beadle?  Before  the  people  of  Hand  county 
asked  me  to  run  for  the  position  which  I  now  occupy,  it  was  gen- 
erally conceded  to  be  the  understanding  that  anything  of  the  nature 
of  a  shoestring  arrangement  of  judicial  districts  should  be  voted 
down.  I  came  down  here  with  that  understanding.  Two  petitions 
were  sent  down.  They  were  not  sent  to  either  of  the  representa- 
tives. Now,  gentlemen  of  the  Convention,  you  can  see  the  forecast 
of  this  thing.  These  petitions  were  gotten  up  under  the  dictation 
of  the  people  of  Huron,  so  I  am  credibly  informed,  and  were  not 
forwarded  to  the  representatives  of  Hand  county.  If  they  were 
not  honest  enough  to  represent  their  own  people  in  the  Convention, 
why  did  they  elect  them?  The  men  that  got  up  that  petition  and 
circulated  it  were  asked  by  the  business  men  of  Miller  to  send  it. 
to  me. 

A  Voice:     It  is  evident  that  Hartley  is  a  Democrat.  (Laugh  h-n. 

Mr.  Hartley:  It  was  not  done.  We  were  ignored  by  the  man 
that  got  up  that  petition.  I  will  say  right  here,  without  fear  of 


224  SOUTH  DAKOTA  DEBATES  1889 

contradiction,  you  go  to  Hand  county  and  talk  with  her  people 
and  you  will  find  that  petition  does  not  represent  the  people  of 
that  county,  and  if  I  had  time  to  explain  these  conditions  of  affairs, 
I  would  bound  by  my  word  as  an  attorney,  there  is  a  different  con- 
dition on  the  road  here  now.  These  petitions  were  not  gotten  up 
by  the  people  of  Hand  county.  I  have  it  upon  very  good  authority. 
While  this  is  in  the  handwriting  of  different  persons  it  was  not 
signed  by  the  attorneys  of  our  Bar ;  the  petition  that  was  circulated 
in  our  county  first  was  included  in  the  county  of  Hyde,  after  this 
petition  was  circulated  and  all  the  signatures  upon  it  but  two, — 
a  copy,  not  the  original,  was  sent  afterwards. 

In  the  evening  the  members  of  the  bar,  or  some  of  the  members, 
held  a  consultation.  They  were  not  satisfied  with  the  man  who 
brought  that  petition  down  here, — they  decided  that  they  were 
sorry  that  they  had  signed  it.  There  is  two  men  here  now  who 
signed  that  petition,: — two  men  who  are  acquainted  with  the  county 
and  they  gave  myself  and  my  colleague  that  impression.  That 
after  they  looked  over  the  matter  they  were  not  satisfied  and  that 
they  decided  to  present  us  with  a  different  statement.  I  have 
lived  there  seven  years;  Mr  Anderson  has  the  same,  and  we  know 
the  people  of  that  county.  That  petition  does  not  represent  the 
sentiment  of  Hand  county.  After  we  had  received  that  petition 
and  before  I  had  heard  the  balance  of  the  report,  and  belore  I 
received  the  letters  last  night,  I  gave  it  weight.  I  felt  inclined  to 
obey  the  request  of  the  bar,  while  I  did  not  consider  either  Mr.  An- 
derson or  myself  had  been  properly  treated.  I  said  to  one  of  them 
that  this  district  would  be  satisfactory, — that  is  true,  I  did  say 
that, — but  what  else  did  I  say?  Did  I  not  say,  I  feared  they  would 
come  before  this  Convention  with  a  different  arrangement;  that 
I  insisted  that  you  should  get  together  and  settle  the  matter  and 
not  have  any  conflict  on  the  floor,  that  we  ought  to  agree  among 
ourselves  and  stop  our  controversary,  for  just  as  long  as  Beadle 
County  wants  Hyde  County  in  that  circuit,  why,  there  is  going 
to  be  trouble.  They  must  have  a  shoestring  district;  they  must 
have  their  own  town  accommodated  the  same  as  it  has  been. 

.  It  went  out  over  our  district  that  Huron  must  not  only  have 
the  center,  but  must  be  mistress  of  the  situation  as  in  the  past. 

In  regard  to  the  new  arrangement  of  this  district,  the  arrange- 
ment that  is  proposed  by  this  substitute,  if  the  counties  can  agree 
upon  it  there  will  be  no  trouble.  Can  we  agree?  Spink  county 


JrmciAL  CIRCUITS  225 


it  does  not  satisfy;  it  does  not  satisfy  Faulk;  it  does  not  satisfy 
Sully,  Potter,  Hughes.  How  many  counties  is  that?  Right  on 
the  other  hand  east  of  us,  they  are  dissatisfied.  I  will  say  in  regard 
to  this,  that  as  far  as  I  am  personally  concerned,  and  supposing 
Codington  county  is  satisfied,  I  am  satisfied.  But  it  would  not 
be  satisfactory  to  our  people.  While  I  am  sorry  that  this  condition 
of  affairs  should  exist,  I  think  the  people  of  Hand  county  are  ca- 
pable of  saying  what  they  want  without  being  dictated  to  by  out- 
side parlies.  I  will  say  further  that  I  have  sent  word  at  different 
times  to  the  members  of  the  County  Bar,  what  would  be  the  ar- 
rangement. I  know  the  arrangement  would  be  substantially  as  the 
Committee  reported.  There  was  a  good  many  Hand  county  folks 
here  last  week.  It  was  talked  over.  If  there  was  any  dissatisfac- 
tion they  were  requested  to  speak  out.  I  heard  no  word.  The 
man  who  brought  this  petition  down  here  came  down  under  the 
instruction  of  a  number  of  men  that  signed  it.  I  am  going  to  vote 
for  the  original  report.  I  am  going  to  come  down  right  now  and 
vote  for  the  original  report.  We  may  as  well  say  Hand  counly  is 
Hand  county  as  well  as  say  it  is  Beadle  county.  It  is  well  under- 
stood by  the  members  of  the  Bar  of  the  county  that  once  a  man  is 
elected  in  that  District,  to  the  bench,  he  serves  the  people.  No 
man  in  that  entire  country  up  there  will  get  on  the  bench  unless 
he  promises  to  serve  the  people, — not  to  serve  one  town.  He  has 
got  to  hold  court  in  the  various  counties  and  do  his  duty ;  that  is 
all  the  people  are  arguing  for  up  there.  They  do  not  care  who  he 
is, — whether  Democrat  or  Republican,  they  say.  A  majority  of 
the  people  have  said  to  me  repeatedly  that  they  do  not  want  to  go 
to  Huron  any  more.  I  have  gone  to  Huron  and  have  taken  two 
days  or  over  on  a  very  unimportant  matter.  If  you  think  I  am  going 
to  take  the  expenses  of  making  such  a  trip  out  of  my  pocket,  you 
are  laboring  under  a  delusion.  But,  if  we  take  it  out  of  our  clients, 
they  begin  to  want  a  court  at  home.  While  this  arrangement 
may  not  suit  some  of  the  counties,  I  think  it  is  the  best  we  can  do. 
Personally,  I  think  they  have  not  given  us  a  fair  show.  There  are 
other  counties  who  have  fault  to  find, — that  they  have  not  receivol 
a  fair  show  in  the  matter  of  services  of  the  judge  of  the  district. 
On  the  other  hand  we  have  paid  that  Judge  $1500  a  year  to  go 
around  the  circuit  to  hold  chambers,  so  as  to  save  clients  unnecessary 
expense.  That  did  not  afford  the  relief  sought;  that  is  why  I 
complain.  I  am  well  acquainted  with  a  great  many  Huron  people; 


226  SOUTH  DAKOTA  DEBATES,  1889. 

I  never  had  any  trouble  with  those  people  or  with  Huron  attorneys. 
My  associations  with  the  people  of  Huron  have  always  been  pleas- 
ant, but  I  am  tired  of  being  compelled  to  go  there  every  time  I 
want  an 'order  signed.  Again  what  are  you  going  to  do?  Then  a 
proposed  county  turns  around  in  their  position;  you  are  as  dis- 
satisfied with  the  new  county  as  with  the  old  arrangement.  Last 
night  I  was  invited  to  attend  a  meeting  of  those  delegates ;  I  under- 
stood all  the  delegates  from  the  dissatisfied  counties  were  invited 
in  there.  They  were  not  all  invited.  But  since  this  happens,  what 
are  you  to  do  but  accept  what  the  Committee  has  given  us  ? 

Mr.  Cooper:  The  gentleman  has  asked  is  it  necessary  to  come 
in  from  the  outside  to  represent  Hand  county?  I  leave  that  to 
the  Convention.  I  would  like  to  ask  this  question:  If  any  gentle- 
man who  signed  that  petition  of  the  Hand  county  Bar  has  sent  word 
by  letter  or  come  in  person,  or  sent  word  by  anyone  that  he  did  not 
want  to  be  in  the  circuit  with  Kingsbury  and  Beadle  counties  ?  I 
will  ask  if  any  lawyer  in  Hand  county,  anywhere,  or  the  gentleman 
who  has  just  left  the  floor  ever  said  he  did  not  want  to  be  in  the 
district  with  Kingsbury  and  Beadle  counties.  We  say  that  no 
attorney  who  has  signed  that  petition  has  declared  that  he  did  not 
want  to  be  in  a  district  with  Kingsbury  and  Beadle  counties,  but 
some  said  they  would  like  a  circuit  out  west  heavier  than  those 
that  had  been  east  and  made  that  objection.  It  was  stated  that 
Faulk  and  Potter  counties  had  objected.  I  say  I  am  not  wrong 
on  this  matter, — I  say  I  know  what  I  am  talking  about  and  no 
gentleman  in  this  Convention  will  dispute  me. 

It  seems  that  the  gentlemen  have  a  grievance,  for  instance, 
Marshall  and  Day  counties.  I  understand  there  are  gentlemen 
here  who  are  representing  those  counties;  I  understood  that  there 
are  gentlemen  here  who  are  representing  Brown,  McPherson, 
Campbell  and  Walworth  counties.  I  have  understood  these  gentle- 
men to  say  if  they  wanted  an  order  or  injunction  that  they  objected 
very  much  if  they  lived  in  Campbell  county,  to  travel  by  rail  to 
Aberdeen  and  from  there  eighty  miles  south  to  the  city  of  Huron, 
and  from  there  one  hundred  and  twenty  miles  west  to  the  city  of 
Pierre  to  get  their  order.  It  has  been  stated  that  the  Legislature 
would,  sometime  in  the  future,  grant  circuit  jurisdiction  or  vest 
County  Courts  with  Circuit  jurisdiction. 

That  Mr.  President,  and  gentlemen  of  the  Convention,  will, 
in  my  mind,  depend  to  a  great  extent  upon  the  circumstances  as  to 


JUDICIAL  CIRCUITS  227 


what  situation  these  county  courts  will  be  placed  in  and  what  kind 
of  men  are  elected  to  fill  those  positions.  Whether  or  not  they  are 
capable  men,  whether  or  not  they  are  men  who  are  capable  of 
performing  the  duties  of  the  office.  If  they  are,  I  presume  that 
certain  jurisdiction  will  be  vested  in  these  courts;  otherwise  I 
presume  likely  it  will  not.  And  if  it  is  not,  what  will  be  the  result? 
You  will  have  trouble  through  these  Judicial  Circuits  in  the  future 
as  we  1  as  in  the  past.  A  man  will  have  to  travel  over  how  many 
different  lines  of  road  and  through  how  many  circuits?  I  say 
this  is  a  question  that  should  be  thought  of  by  this  Convention 
before  they  pass  upon  the  question.  In  the  proposed  circuit  of 
the  substitute,  what  do  we  find?  We  find  that  these  counties  are 
nearly  all  contiguous, — nearly  all  ^connected  by  direct  lines  of 
railroad ;  we  find  that  the  counties  lying  west  of  Aberdeen  have 
complete  railroad  connections  with  the  county  of  Brown,  Marshall, 
and  Day;  we  find  the  counties  lying  west  of  the  county  of  Kings- 
bury  have  connections  throughout  the  Circuit  with  the  counties 
lying  north,  the  counties  of  Potter  and  Faulk,  have  direct  com- 
munication with  the  balance  of  the  Circuit.  I  say  again,  the 
gentlemen  might  not  have  heard  what  I  said  before  I  repeat  it 
now, — I  want  you  to  say  whether  or  not  members  of  the  Hand 
county  Bar  are  opposed  to  the  proposed  plan,  or  prefer  Hughes,  Sully 
Hyde,  Beadle,  and  Kingsbury  counties.  I  ask  if  any  gentlemen 
of  Hand  County  were  ever  opposed  to  the  Judicial  Circuit  com- 
posed of  Sully,  Hughes,  Hyde,  Beadle,  Kingsbury  and  a  couple 
of  counties  lying  north  or  south. 

Mr.  Humphrey:  If  the  gentlemen  of  the  Convention  will 
pardon  me  for  a  moment,  I  will  attempt  to  clear  away  some  of 
this  rubbish.  In  the  first  place  I  congratulate  myself  in  that  what 
I  may  say  is  addressed  to  a  body  of  gentlemen  and  not  to  a 
petit  jury,  who  are  selected  under  them,  and  in  consequence  of 
this  that  this  argument  will  have  more  influence  with  you  than 
with  a  jury.  Further  than  this,  it  will  not  he  necessary  for  me  to 
call  your  attention  to  the  fact  that  positive  assertion  is  no  more 
argument  than  that  a  check  is  just  a  slip  of  paper.  It  has  been  with 
considerable  amusement  that  I  listened  to  and  witnessed  the  as- 
surance that  the  gentlemen  from  Beadle  county, — the  extra- 
ordinary assurance  that  they  have  shown  in  pleading  for  othrrs. 
and  while  they  include  Beadle  county  among  the  list  of  dissatisfied 
counties,  they  have  not  called  your  attention  to  a  single  ground  for 


228  SOUTH  DAKOTA  DEBATES  1889 

that  dissatisfaction, — not  a  single  ground.  Their  solicitude  is 
remarkable  in  that  it  refers  only  to  others.  While  I  do  not  descend 
to  insinuations  as  to  the  motives  of  others,  that  alone  would  in- 
dicate a  motive  of  their  own.  We  can  but  infer  that  the  gentlemen 
from  Beadle  county  must  have  some  cause  for  alarm  to  be  connected 
with  Brown  county,  and  if  it  is  true,  why  should  they  not  immed- 
iately contribute  to  smaller  counties  the  same  fear  of  being  con- 
nected with  them.  The  gentleman  who  first  occupied  the  floor 
from  Beadle  county  said  that  there  can  be  nothing  of  the  nature 
of  compactness  in  a  district  130  miles  long.  Well,  the  district, 
under  the  apportionment  made  by  the  Committee  of  which  Beadle 
county  is  a  part,  is  120  miles  long.  These  are  small  inconsistencies, 
to  which  I  call  your  attention.  Another  amusing  thing,  to  my 
mind,  presented  by  the  gentleman  who  first  occupied  the  floor  from 
Beadle,  is  this:  He,  through  some  stretch  of  imagination,  is  able 
to  discern  some  difference  between  the  duties  of  the  delegates  who 
are  on  Committees  and  those  who  are  not  on  Committees.  I  came 
here  representing  a  locality ;  I  came  here  representing  all  and  each 
of  the  localities;  I  know  no  difference  in  the  discharge  of  my  duty, 
either  as  a  Committeeman  or  as  a  member  of  this  Convention.  The 
gentleman  who  last  had  the  floor  from  Beadle  county,  assures  us 
that  Spink  county  would  have  reason,  as  he  terms  it,  to  "kick"  on 
the  proposed  substitute,  he  admits  that  others  have  reasonto  "kick" 
on  the  plan  proposed,  but  has  shown  no  such  reason  why  Beadle  has 
any  reason  to  "kick"  under  the  plan  as  proposed  by  the  Committee. 
It  is  told  you  by  the  Chairman  that  the  Committee  devoted  most 
careful  consideration  and  great  industry  in  endeavoring  to  present 
to  this  Convention  a  report  that  would  meet  the  approval  of  the 
Convention.  He  told  you  they  had  considered  every  proposition 
that  had  been  brought  before  it,  and  that  the  Committee  met  on  the 
very  evening  of  the  very  day  they  were  appointed  and  they  gave 
notice  that  their  doors  would  be  open  to  members  of  this  Conven- 
tion and  notice  was  given  where  they  met  from  time  to  time  and 
there  was  no  time  but  what  those  doors  have  been  open  for  all 
who  wished  to  address  the  Committee  during  its  session  for  a 
period  of  about. three  weeks.  I  was  amazed  by  the  statements 
made  here  and  am  confident  they  must  have  been  unguarded 
statements.  It  is  certainly  an  erroneous  statement  that  they  had 
not  had  an  opportunity  to  make  their  arguments  before  the  Com- 
mittee. If  anyone  attempts  to  impugn  either  the  motives  of  this 


JUDICIAL  CIRCUITS  229 


Committee  of  this  Convention  in  saying  or  implying  in  any  sense, 
a  dishonorable  motive  on  the  part  of  this  Committee  it  is  an  insult, 
not  only  to  the  Committee,  but  one  to  the  Convention.  As  our 
Chairman  informed  you,  we  considered  first,  carefully  the  powers 
of  this  Convention;  also  the  expediency,  and  next  the  necessity  of 
enlarging  these  districts.  There  was  some  diversity  of  opinion;  a 
large  majority  were  of  the  6pinion,  and  that  opinion  was  founded 
upon  the  intelligence  of  the  Bar, — for  other  members  of  the  Bar 
were  before  that  Committee,  not  only  from  the  Convention,  but 
without.  The  question  of  expediency  bore  also  upon  the  question 
of  the  powers  for  this  reason,  it  was  simply  a  question  of  doub  ,a 
large  majority  feeling  the  power  was  clear  and  distinct  and  at  most, 
but  open  to  a  question  of  doubt  resisted  the  expediency  of  increasing 
the  districts, — that  it  would  interfere  with  the  President's  admitting 
us.  I  wish  to  indicate  the  care  that  was  exercised.  These  ques- 
tions were  weighed  as  carefully  as  they  might  be.  What  would 
be  the  effect  of  increasing  the  facilities  of  the. court?  It  was  in 
view  of  the  added  facilities  under  the  Constitution  that  it  was  finally 
determined  by  a  large  majority  that  there  was  no  great  need  of 
increasing  the  facilities  at  the  present  time.  During  all  this  time 
that  these  gentlemen  were  insinuating  that  there  were  political 
motives  controlling  the  Committee  I  will  simply  say  this,  that  there 
is  no  doubt  that  there  are  many  ambitious  towns  in  this  State 
and  many  people  aspiring,  perhaps  among  those  facing  yourself, 
Mr.  President.  So.  far  as  I  know  this  was  not  the  motive  that  in- 
fluenced any  man  upon  that  Committee.  The  reason  that  it  \vas 
held  at  the  lowest  possible  estimate  of  necessity,  was  this,  that  at 
present  we  had  to  make  our  apportionment  on  a  vote.  No  satis- 
factory apportionment  can  be  made  except  by  publication  under 
a  census.  The  census  will  be  taken  in  1890.  We  will  then  have 
a  basis  upon  which  a  re-apportionment  can  be  made  that  will  bo 
satisfactory  to  all.  Therefore,  it  was  not  considered  expedient 
or  necessary  by  the  Committee  that  they  should  attempt  at  the  pres- 
ent time  to  provide  for  the  future  of  Dakota, — simply  for  the  near 
future  during  the  period  previous  to  the  taikng  of  this  census. 
As  to  the  plan  upon  which  the  form  of  the  districts  was  determined, 
that  was  the  question  upon  which  there  seems  to  have  been  the 
most  charges  made  concerning  corruption  on  the  part  of  the  Com- 
mittee. It  occurs  to  me  that  you  may  not  all  know  what  reeently 
appeared  in  the  Aberdeen  Republican,  as  erting  that  that  Com- 


230  SOUTH  DAKOTA  DEBATES  1889 

mittee  was  packed.  Well,  I  will  say  that  when  I  first  read  the 
names  through  of  the  members-elect  of  the  Convention,  I  found 
that  there  was  about  one-third  of  the  Convention,  Democrat.  I 
know  six  Democrats  of  the  Convention  on  that  Committee.  I  will 
add,  though  it  may  not  be  pertinent  to  the  argument,  that  while  it 
is  plain  that  these  north  counties  were  unrepresented  upon  that 
question,  events  show  why.  The  most'  important  duty  before  this 
Convention  was  a  division  of  the  archives,  assets  and  liabilities  of 
the  two  states.  That  was  the  paramount  duty.  Who  was  to  do 
it?  Simply  a  commission  of  seven,  over  whom  we  had  no  control. 
We  could  not  dictate  to  them  in  the  slightest  degree.  Who  con- 
stitute that  Committee?  Was  the  north  portion  of  the  State 
ignored?  They  had  two  out  of  the  seven  members  of  the  Com- 
mission. They  wanted  three.  It  is  said  that  the  gentleman  from 
Brown  county  claims  that  they  did  not  wish  it,  but  as  I  understand 
it  there  was  two  candidates  from  Brown  county  for  the  position. 
One  got  it, — the  other  got  left. 

Now,  in  regards  the  forming  of  these  districts  all  that  can  be 
said  is,  that  the  forming  of  the  districts  is  fixed  by  the  express 
terms  of  the  Constitution  of  the  Convention  of  1885.  That  Con- 
stitution says  that  these  districts  shall  be  compact  in  form.  The 
very  men  who  drafted  that  Constitution  approve  of  the  districts 
as  reported  by  the  Committee.  They  are  compact  in  form  in  the 
nature  of  being  square  or  as  near  square  as  may  be.  Mr.  Presi- 
dent, while  we  have  been  guarded  step  by  step,  we  have  progressed 
in  our  duties  to  avoid  stepping  over  the  bounds  in  the  least  par- 
ticular under  the  provisions  of  the  Omnibus  Bill,  feeling  that  we 
had  no  right  or  power  to  amend  the  Constitution  in  any  way  or 
shape  except  as  provided  by  the  provisions  of  that  Bill.  When  we 
have  exercised  that  care  in  the  discharge  of  all  our  duties  so  far, 
shall  we  begin  now  to  violate  its  spirit?  Gentlemen  have  stated 
here  that  there  was  apparently  quite  a  large  minority  in  that  Com- 
mittee opposed  to  the  report.  Has  it  occurred  to  you  that  if  that 
was  true  that  it  was  strange  that  they  have  no  minority  report? 
How  is  this  matter  brought  before  the  Convention?  In  any  way 
implying  disagreement  in  the  Committee  rooms?  Mr.  President, 
this  opposition  is  instigated  by  those  who  have  shown  themselves 
so  solicitious  with  regard  to  the  convenience  of  the  others  and  so 
ready  to  assert  what  the  other's  wishes  are.  The  gentleman  from 
Beadle  should  have  presented  a  minority  report  and  he  would 


JUDICIAL  CIRCUITS  231 


have  stated  his  reasons  The  facts  of  the  case  are  that  it  is  im- 
possible to  please  all,  as  glad  as  we  would  be  to  do  so.  Your  Com- 
mittee used  their  every  endeavor  to  adopt  a  plan  that  would  please 
the 'greatest  number  possible.  Every  possible  plan  that  could  be 
devised  has  been  tried  and  tested  and  we  finally  determined  upon 
a  plan  of  a  vote  of  apportionment  that  would  please  all  but  a  few. 
It  is  a  matter,  simply  an  impossibility  to  please  everybody.  Where 
we  find  a  single  county,  as  glad  as  we  would  be  to  accomodate  them, 
—carrying  out  the  spirit  of  this  Constitution,  we  would  be  glad  to- 
do  so,  but  in  the  discharge  of  duty  we  should  not  hesitate  even  upon 
this  point  to  do  our  duty  and  make  an  apportionment  that  would 
accomodate  the  greatest  number.  They  have  asserted  that  the 
substitute  accomodates  more  than  the  majority  report.  It  is 
claimed  a  portion  of  the  counties  whose  voice  they  claim  to  speak, 
but  secured  it  by  sending  out  to  get  it.  It  is  presumed  that  the 
delegates  on  the  floor  of  this  Convention,  who  represent  those  count- 
ties  know  the  needs  of  their  people  and  will  -not  prove  recreant  to 
the  trust  imposed  upon  them.  I  will  say  in  this  connection  also, 
in  conversation  with  a  gentleman  representing  Campbell,  who 
will  vote  for  the  substitute  in  representing  the  voice  of  his  con- 
stituency, that  he  told  me  that  they  went  to  Aberdeen  in  preference 
to  any  other  place  to  attend  court.  When  I  asked  him  why  they 
wanted  to  go  there  or  anywhere  else  under  the  provisions  of  the 
Constitution  the  judges  were  to  go  to  the  people  of  the  counties 
and  not  the  people  to  go  to  the  judges  as  heretofore.  He  replied 
that  since  they  learned  that  fact  they  had  no  anxiety  to  go  to 
Aberdeen  to  attend  court.  Another  reason  is  this,  Mr.  President; 
these  little  counties  and  these  large  counties  especially  have  almost 
a  year's  calendar  on  hand  and  in  the  new  counties  of  the  west  it 
will  be  as  in  the  past  that  they  will  get  court  at  the  convenience  of 
the  larger  counties.  It  does  impress  me  as  somewhat  strange  that 
these  entire  counties  should  be  afraid  to  stand  alone, — why  they 
should  wish  to  have  tied  to  them  counties  by  the  half  dozen  or  more 
which  I  think  is  one  of  the  incomprehensible  things. 

The  people  west  would  say  almost  in  one  voice,  we  favor  the 
adoption  of  there  port  presented  by  the  Committee ;  they  are  able  to 
stand  alone  and  they  want  judges  to  look  after  their  business  and 
as  yet  their  business  is  not  so  extensive  but  what  a  judge  coming 
in  there  could  keep  up  with  any  counties  in  their  district,  except 
perhaps  Hand  and  Hughes  with  an  accumulated  docket.  I  was 


232  SOUTH  DAKOTA  DEBATES  1889 

surprised  by  the  argument  by  the  gentleman  from  Beadle,  on  this 
floor.  I  should  not  refer  to  it,  though  the  argument  was  presented 
to  the  Committee,  and  that  is  why  I  was  surprised  that  it  was 
presented  here  after  it  met  with  the  reception  it  did  in  the  Com- 
mitte  room,  I  am  surprised  that  it  was  presented  on  this  floor  and 
had  it  not  been  so  presented  I  should  not  have  referred  to  it.  It 
was  this:  That  it  was  wrong  and  un-desirable  to  both  parties 
who  had  been  together  before  now  in  business  relations  to  be 
separated  and  that  the  counties  who  had  been  associated  with 
Beadle  wished  still  to  remain  with  Beadle  because  all  was  har- 
monious between  them  and  everything  working  so  nicely.  What 
stuff!  I  want  to  say,  gentlemen  of  this  Convention,  that  I  have 
no  personal  motives  or  any  personal  interests  to  serve  in  the 
formation  of  these  districts.  It  is  my  purpose,  as  under  my  oath, 
it  is  my  duty,  to  use  my  best  influence  in  securing  these  districts 
as  I  believe  best  meet  the  requirements  of  the  Constitution  and 
best  serves  the  interests  of  the  people.  I  will  say  that  so  far  as  I 
know  we  have  no  candidate  for  judge  in  the  county  from  which  I 
come  I  am  certainly  not  eligible,  not  being  an  attorney.  I 
will  say  further,  no  matter  from  what  county  the  judge  is  elected 
that  no  one  county,  Mr.  President,  will  have  more  court  or  more 
chambers  than  any  other  county. 

Mr.  Wood:  As  a  member  of  the  Committee,  I  contended  all 
along  that  eight  circuits  were  not  enough.  The  difficulties  that  we 
are  now  experiencing  is  a  difficulty  that  I  before  contemplated, 
and  if  the  state  were  to  be  divided  into  nine  circuits  I  am  satisfied 
it  would  not  be  too  many.  I  am  also  satisfied  that  such  a  division 
should  have  been  made  as  to  completely  remove  this  entire  difficulty. 
There  is  some  inequity  in  this  division  contended  for,  contained  in 
the  report  of  the  majority  Committee.  There  is  some  inequities 
contained  in  the  substitute.  It  never  can  be  arranged  in  this  way 
and  get  a  satisfactory  division  of  the  circuits  of  this  State.  In  my 
judgment,  having  had  twelve  years  experience  at  the  Bar  in  this 
Territory,  in  my  judgment,  these  circuits  are  not  sufficient.  While 
they  may  answer  for  a  time,  I  think  the  Convention  is  giving  the 
State  an  insufficient  number  of  judicial  circuits.  I  therefore  move 
that  this  report  and  the  proposed  substitute  be  re-submitted  to  the 
Judiciary  Committee  with  instructions  that  they  report  on  the 
morrow,  recommending  the  creation  of  nine  circuits. 
Mr.  Van  Tassel:  I  second  the  motion. 


JUDICIAL  CIRCUITS  233 


Mr.  Fellows:  I  rise  to  second  the  motion  of  the  gentleman 
from  Pennington  County  and  in  doing  so  to  say  this, — that  in  my 
opinion  nine  districts  will  soon  be  insufficient  to  accommodate  the 
business  that  they  will  have  to  perform  in  the  administration  of 
the  justice  as  it  ought  to  be  administered  in  the  courts  of  this 
State.  That  it  will  require  at  least  nine  circuits  and  further  it 
would  afford  us  a  happy  solution  of  the  difficulty  we  have  gotten 
into  here  today  and  at  the  same  time  satisfy  all  localities.  I  most 
heartily  second  the  motion  of  the  gentleman  from  Pennington. 

Mr.  Sterling:  I  would  say,  as  stated  in  the  report,  that  the 
Committee  have  also  had  this  subject  under  very  careful  consider- 
ation. It  was  with  reluctance  that  some  of  the  members  of  the 
Committee  yielded  to  any  increase  at  all.  It  was  assented  to,  I 
believe,  that  one  additional  circuit  in  the  Black  Hills  country  would 
be  sufficient  to  transact  their  business  there.  It  was  said  by  a 
good  many  members  of  the  Committee  at  first  that  five  circuits 
were  satisfactory  to  themselves  as  shown,  but  that  the  increase 
would  be  sufficient  if  the  State  was  properly  apportioned  in  the 
districts  in  which  to  do  business.  I  think  that  this  motion  to  add 
another  district  for  the  territory  east  of  the  river  ought  not  to  be 
raised. 

Mr.  Humphreys:  The  Committee,  as  the  Chairman  has  stated, 
did  most  carefully  consider  that  matter.  The  gentleman  making 
the  motion  and  the  gentleman  seconding  it  were  the  only  two  that 
I  now  remember  who  finally  favored  the  idea  of  having  nine  circuits. 
It  was  the  judgment  of  the  Committee  that  that  would  not  be  the 
sense  of  the  Convention;  that  it  would  be  neither  expedient  nor 
necessary  'o  extend  the  number  beyond  eight.  I  doubt  if  it  would 
be  possible  to  arrive  at  any  other  condition  than  now  exists,  if 
we  did  have  nine  circuits.  I  move  that  the  motion  of  the  gentleman 
from  the  Hills  be  laid  upon  the  table. 

Which  motion  was  seconded. 

The  President:  You  have  heard  the  motion.  Mr.  Woods, 
of  Pennington,  moved  that  the  majority  and  minority  reports 
be  referred  back  to  the  Committee  for  revision;  Mr.  Humplm-vs 
moves  that  the  motion  be  laid  upon  the  table.  Are  you  ready  for 
the  question. 

The  motion  to  lay  upon  the  table  prevailed. 

Mr.  Sterling:  I  have  been  a  little  bit  surprised,  gentlemen, 
at  the  assumption  that  has  been  manifested  by  some  members  of 


234  SOUTH  DAKOTA  DEBATES  1889 

the  Convention  in  favor  of  this  amendment  or  substitute,  and 
who  have  spoken  upon  that  side  It  seems  to  be  a  remarkable 
solicitude  for  the  welfare  of  the  other  counties  that  is  exhibited 
by  these  gentlemen  and  you  will  notice,  gentlemen,  that  the  most 
of  the  opposition  to  the  majority  report  and  the  second  in  favor  of 
this  amendment  comes  from  a  certain  section,  from  a  certain 
county.  It  eminated  from  that  same  county  in  the  Committee; 
it  eminates  from  that  same  county  here  in  the  Convention.  These 
gentlemen  deny  and  protest  it  is  not  for  political  purposes  that  they 
object  to  the  majority  report,  and  say  that  they  do  not  know  that 
they  have  any  candidate  for  judge.  That  there  is  nothing  of  that 
kind.  I  will  ask  you,  gentlemen,  if  at  the  coming  election  there 
is  no  other  political  question  to  be  determined  than  the  judgeship, 
or  whether  that  may  be  any  motive  to  base  this  particular  form  or 
district  upon  as  reported  by  the  majority  of  this  Committee.  But 
the  gentlemen  come  upon  the  floor  and  make  a  strong  point  as  they 
seem  to  make, — as  they  would  have  this  Convention  believe  to  be 
that  the  counties  to  the  west  of  the  county  of  Beadle  as  against 
Beadle  and  Kingsbury  counties  will  overcome  Beadle  and  Kings- 
bury  counties  in  Convention,  in  the  nomination  of  a  judge  what 
does  that  amount  to?  They  are  not  so  particular  as  to  that  but 
they  have  other  interests  at  stake.  What  does  it  mean?  Can 
we  not  see  it?  To  have  these  counties  west  of  them  entirely  tribu- 
tary to  fhem,  their  political  preferment  to  be  included  in  that  same 
district  which  they  have  mapped  out.  It  may  be  capital  for  them 
to  deny  their  reasons  and  say  there  are  no  reasons  for  it. 
What  do  we  make  these  judicial  districts  for,  gentlemen  of  the  Con- 
vention? Is  this  Committee  to  be  in  the  despicable  business  of 
making  out  circuits  to  gratify  the  aspirations  for  judgships?  I 
say  that  is  one  of  the  questions  or  rather  influences  that  this  Com- 
mittee had  to  contend  with,  guard  against,  while  in  session.  It  is 
one  of  the  very  things  we  will,  in  Convention,  have  to  guard  against. 
The  opposition,  most  of  it,  to  this  report,  comes  from  a  county  that 
for  the  transaction  of  business  is  one  of  the  very  best  circuits  of 
South  Dakota  today,  and  they  dare  not  deny  it.  Four  counties  in 
the  circuit  and  every  town  in  it  of  "free  access  to  any  judge  from 
whatever  part  of  that  circuit  he  may  come.  They  cannot  say  that 
each  of  these  counties  shall  not  have  its  reasonable  share  of  his  time 
and  attention, — let  him  come  from  where  he  will.  Then  gentlemen, 
it  must  be  from  some  other  motive  than  the  discharge  of  their 


JUDICIAL  CIRCUITS  235 


business  that  these  gentlemen  from  Beadle  county  oppose  this 
report  and  I  think  you  are  by  this  time  aware  of  it.  They  pretend 
to  speak  the  sentiments  of  these  counties  around  them.  I  ask 
you  if  they  speak  the  sentiments  of  Kingsbury  or  that  of  the  counties 
west  of  them.  From  letters  from  a  district  attorney  of  Hand 
county,  in  which  he  calls  attention  to  the  very  petition  presented 
by  tne  gentleman  from  Beadle,  in  which  he  says  that  they  made  a 
mistake  and  desires  that  their  names  be  cancelled  therefrom. 
They  pretend  to  speak  for  Hand  county  in  fact,  made  what  would 
seem  to  be  the  strongest  argument.  The  gentlemen  from  Hand, 
delegates  on  this  floor,  whose  opinion  you  are  bound  to  respect, 
say  they  are  opposed  to  the  minority  report.  What  else  is  there 
in  this?  Will  the  gentlemen  deny  that  their  petition,  signed  by 
the  attorneys  of  the  Bar  of  Hand  county,  has  been  followed  here 
by  the  men  who  signed  it,  and  have  told  the  members  of  the  Com- 
mittee and  members  of  this  Convention  that  they  are  satisfied 
with  the  district  as  embodied  in  the  report  of  the  Judiciary  Com- 
mittee? 

Mr.  Sherwood:  I  deny  that  any  gentleman  has  done  anything 
of  the  kind  and  you  may  publish  it.  I  heard  it  told,  and  told  by 
other  gentlemen  who  have  been  told  the  same  thing.  I  simply  say 
that  I  am  in  duty  bound  to  correct  the  impression  that  these 
gentlemen  from  Beadle  try  to  leave  in  reference  to  Hand  county. 
I  say  I  know  the  delegates  here  from  Hand  county  reflect  the  senti- 
ment of  the  people  there.  What  else  is  there  in  this  report  that  is 
not  satisfactory?  I  believe,  gentlemen,  that  we  have  disposed  now 
of  the  question  in  reference  to  Beadle  county  and  the  counties  west 
of  Beadle. 

There  is  some  opposition  from  the  north, — it  is  opposition  that 
is  entitled  to  command  respect.  The  gentlemen  making  that  op- 
position do  so  without  reference  to  capital  purposes  or  judgship 
purposes  or  any  other  unworthy  motive.  The  Committee  have 
tried  their  best  to  satisfy  them  but  we  found  that  with  the  other' 
interests  of  the  other  districts  to  make,  we  could  not  do  any  better 
than  we  did  do.  Then  is  it  so  very  inconvenient,  so  distressingly  in- 
convenient for  all  those  gentlemen  in  the  north  ?  Look  at  the  map 
and  see.  On  the  east  is  Day  county.  The  gentlemen  from  Day 
county  protest.  What  kind  of  an  arrangement  will  we  have 
yonder  when  admitted  as  a  State?  We  shall  undoubtedly  have  for 
these  counties  two  terms  of  court  each  year  in  each  of  them  What 


236  SOUTH  DAKOTA  DEBATES  1889 

are  the  communications  that  Day  county  would  have  with  the  other 
counties  around  her?  She  will  have  Grant  county  on  the  east  with 
two  terms  of  court  yearly  at  which  her  attorneys  can  transact 
business.  What  connection  below?  Clark  county  with  two 
terms  each  year  at  which  her  attorneys  can  transact  business,  with 
which  they  have  direct  communication.  He  would  go  from 
Webster  to  Bristol  and  from  Bristol  to  Elrod,  which  is  about 
seventy  miles  from  Clark.  Is  that  very  inconvenient?  Those 
trains  connect  What  else  is  there  about  it?  Why  two  terms 
of  court  in  Day  county  itself,  with  good  railroad  connection,  and 
if  they  have  any  great  stress  they  don't  have  to  walk,  but  can  take 
the  train  eighty  miles  over  to  Watertown  and  transact  their  busi- 
ness. So  I  say  as  against  the  arrangement  that  this  Committee 
has  made,  with  all  the  work  they  have  done,  you  will  not  with  those 
advantages  that  appear  so  plainly  upon  the  map,  better  th  :  con- 
dition of  the  county  of  Day.  I  do  not  think  you  will  set  aside  this 
report  of  this  Committee.  What  about  Kingsbury?  There  is 
objections  from  there.  I  say  exactly  the  same  argument  obtains 
for  the  county  of  Kingsbury.  It  has  Brookings  on  the  east  of  it 
with  two  terms  of  court  a  year.  It  has  its  own  two  terms  of  court 
a  year  at  which  the  attorneys  may  attend  and  transact  their  busi- 
ness. If  you  wish  to  go  to  Clark,  the  trains  are  reasonably  ac- 
cessible to  the  county  of  Kingsbury.  In  addition  to  this,  gentle- 
men, it  will  probably  be  provided,  if  the  judges  do  not  manifest  the 
disposition  themselves  to  do  it,  by  the  Legislature  that  the  ,'n- 
equities  perhaps  referred  to  by  Mr.  Van  Buskirk,  of  Codington 
county,  will  force  the  matter  upon  their  attention.  The  judges 
will  be  required  to  hold  a  day  in  chambers  each  month  'n  each 
county  in  his  circuit,  and  that  with  the  jurisdiction  which  may  be 
conferred  as  the  gentleman  from  Codington  has  said,  upon  the 
county  courts  to  grant  motions  and  hear  motions  and  chambers 
will  still  further  relieve  this  dissatisfaction.  Let  us  look  at  the 
•(ther  side  of  the  Fifth  District,— McPherson,  Campbell,  Walworth 
and  Edmunds. 

Gentlemen,  I  am  surprised  to  hear  the  cry  of  distress  go  up 
and  then  look  at  the  map.  Why,  McPherson  has  no  communication 
with  Brown  county  by  railroad  except  down  through  Edmunds 
county.  Campbell  turns  to  Aberdeen  as  a  Mecca  and  she  has  to 
perform  her  pilgrimage  by  way  of  Eureka.  Walworth  goes  through 
Edmunds  to  Brown  county,  and  yet  here  is  a  gentleman  from 


JUDICIAL  CIRCUITS  237 


Edmunds  having  the  most  direct  communication  with  Brown 
county  through  which  county  these  other  counties  have  to  go,  who 
tells  us  that  they  want  a  district  by  themselves  away. from  Brown 
county.  It  is  more  than  likely  they  will  have  railroad  communi- 
cation with  other  parts  of  the  district.  There  has  already  been 
'started  a  road  that  extends  in  that  direction  and  which  will  un- 
doubtedly be  completed  in  a  short  time,  and  each  county  in  that 
district  will  be  connected  with  the  other  by  good  railroad  com- 
munications. So,  gentlemen,  I  believe  that  these  objections,  when 
we  come  to  consider  what  has  been  done  for  the  whole  state  and  the 
way  the  Committee  have  had  to  plan  and  figure  in  order  to  satisfy 
the  different  places  and  apportion  them  according  to  the  population 
and  according  to  the  communications  so  far  as  possible,  that  this 
Committee  report  must  commend  itself  to  you  for  your  adoption. 

(Repeated  call  of  "Question".) 

Mr.  Sterling:     I  move  the  previous  question. 

Motion  seconded. 

Mr.  Stoddard:     I  raise  the  point  of  order,  I  had  the  floor. 

Mr.  Sterling:     The  motion  is  withdrawn.  I  beg  pardon. 

Mr.  Stoddard:  Gentlemen  are  calling  for  the  question.  I 
am  not  disposed  to  take  much  of  your  time  if  I  could;  I  am  not  a 
lawyer  or  a  professional  speaker;  I  have  been  talked  to  by  them. 
What  few  remarks  I  do  make  I  hope  I  will  not  get  quite  so  noisy 
as  my  friend  from  Beadle  and  certainly  not  so  excited  as  my  friend 
from  Spink.  I  KNOW  I  cannot  talk  so  smooth  and  oily  as  my  friend 
from  Faulk. 

There  are  a  few  points  that  I  wish  to  talk  about.  One  is  this 
— about  Beadle  county.  The  most  of  the  talk  seems  to  be  of  this 
nature  that  indicates  that  most  of  them  are  partial  to  Beadle 
county  and  Huron  in  particular.  Now  if  that  is  a  fact,  we  cannot 
help  it.  Up  north  there  are  some  six  counties  in  a  block  with  Kings- 
bury  down  here  and  Hand  that  makes  eight  altogether,  besides 
Beadle.  We  certainly  are  not  responsible  for  the  lawyers  of  the 
city  of  Huron.  Our  counties  feel  that  there  is  injustice  done  to 
all  these  counties  and  it  appears  to  me  that  greater  injustice  will 
be  done  by  adopting  the  majority  report. 

We,  from  the  north,  came  down  here  with  a  clear  understanding 
not  from  any  combination  as  has  been  insinuated, —  nothing  of 
that  kind — but  by  talking  and  instructions  and  from  the  feeling 
all  through  our  counties  and  Brown  county  and  from  all. 


238  SOUTH  DAKOTA  DEBATES  1889 

We  have  no  petition,  but  no  one  denies  but  what  we  want  it 
as  the  substitute  calls  for.  Walworth  and  McPherson  certainly  do 
and  Day.  The  one  exception  is  Edmunds  county.  When  we 
came  down  here  we  understood  that  Edmunds  wanted  to  go  with 
the  district  as  it  was  at  present  under  the  Territorial  div;sion. 
But  since  then  my  friend  from  Faulkton  has  got^two  or  three  letters 
and  there  seems  to  be  little  doubt  but  that  the  lawyers  of  Ipswich 
want  to  be  joined  to  the  Brown  county  district. 

I  present  it  to  this  Convention ;  is  there  any  sense  in  saying 
that  Edmunds,  whose  county-seat  is  only  twenty-six  miles  from 
Aberdeen  should  oppose  the  motion.  I  leave  it  there,  if  there  is 
any  sense  in  that. 

I  want  to  ask  the  gentlemen  from  Codington  and  Clark,  what 
serious  objection  they  have  got?  This  substitute  leaves  them 
in  good  form;  I  ask  the  same  question  of  Sully  and  Potter — they 
are  small  counties  but  have  just  as  good  right  to  be  represented 
as  any.  What  serious  objections  have  they  to  re-districting  this 
portion  of  the  State  and  let  some  nine  counties  dissatisfied  under 
the  substitute  that  otherwise,  if  the  Judiciary  Committee  report 
goes  through,  are  opposed  emphatically  and  positively  to  it.  Ex- 
cuse me  gentlemen,  I  don't  know  but  I  am  getting  noisy. 

It  brings  up  another  point.  Nine  counties  positively  and 
emphatically  opposed  to  the  majority  report,  so  called.  There  are 
some  other  counties  in  favor  of  it  and  opposed  to  the  substitute. 
But  no  good,  tenable  objection  has  been  stated  on  this  floor. 
The  gentlemen  from  Codington  and  from  Faulk  and  from  Clark 
give  no  substantial  reasons  why  they  are  not  satisfied  with  the 
substitute.  They  have  told  you  about  shoe-string  districts,  they 
have  represented  them  stretching  from  the  Minnesota  state  line  to 
the  river  and  how  convenient  it  was  to  go  from  one  county  to 
another.  But  they  have  not  stated  any  reason  why  the  wishes  of 
these  counties  up  north  should  not  be  respected ;  I  submit  that  as 
a  fact. 

Just  one  other  thing.  The  gentlemen  from  Spink  seem  to  harp 
so  much  upon  the  fact  that  the  Committee  has  labored  so  long  and 
continuously  while  getting  up  this  report.  I  am  not  a  member  of 
that  Committee,  but  I  am  somewhat  familiar  with  their  work.  In 
the  first  place  they  took  about  a  week  to  consider  the  question  of 
power,  the  question  of  expediency.  Two  or  three  of  the  gentlemen 
said  that  they  had  our  case  in  hand  and  they  would  do  us  justice. 


JUDICIAL  CIRCUITS  239 


All  right,  we  rest  there  easy.  In  the  meantime  a  joke  began  to  be 
passed  around.  They  came,  first  one,  then  another,  with  the  re- 
mark, "How  would  you  like  Beadle,  Spink,  Brown  and  Marshall 
in  your  district?"  It  was  passed  around  to  everyone  as  a  joke  and 
so  taken.  Nothing  was  thought  about  that;  thought  it  was  not 
possible  to  perpetrate  such  an  eternal  joke  as  that  upon  us.  But 
it  seems  that  some  of  the  Committee  went  down  to  the  Chairman, 
the  gentleman  from  Spink,  and  spoke  of  the  joke,  lo  and  behold 
the  gentleman  took  it  seriously.  There  was  just  a  few  hours  labor 
on  that  entire  joke,— just  a  few  hours.  The  most  in  portant  part 
of  the  whole  labor,  I  understand,  was  undertaken  in  those  very  few 
hours  and  the  beginning  of  that  work  was  a  joke. 

Now,  gentlemen,  I  do  not  know  whether  we  can  count  on  that 
or  not,  but  certainly  we  have  a  most  emphatic  and  positive  ob- 
jection to  that  majority  report.  We  thus  appeal  to  you — appeal 
to  you  for  this  substitute.  It  hurts  no  one  at  all  and  everyone 
will  have  facilities  for  getting  back  and  forth  throughout  the  dis- 
trict. We  thus  appeal  direct  to  you,  gentlemen  of  this  Convention, 
and  I  appeal  to  some  of  the  members  of  the  Judiciary  Committee 
also.  There  is  none  of  those  counties  that  want  to  go  in  that 
unless  it  is  Spink  and  with  possibly  the  exception  of  Spink  none 
of  these  want  o  go  nto  that  district.  I  hope  you  will  do  us  justice. 

Mr.  Clough:     I  move  the  previous  question. 

Motion  was  duly  seconded, 

Call  of  "Question"  from  all  parts  of  the  House. 

Mr.  Willis:  The  majority  can  say  whether  they  want  the  pre- 
vious question. 

Mr.  Lee:  I  believe  we  are  convinced  that  we  do  not  want  to 
stay  any  longer.  If  we  stay  much  longer  the  "Old  Man"  will  want 
to  make  aspecch  and  then  he  will  stay  here  all  night. 

Mr.  President:     Shall  the  question  be  put? 

This  motion  prevailed. 

Mr.  President:  Mr.  Sterling  of  the  Judiciary  Committee 
brought  in  a  report  Mr.  Spooner  of  Kingsbury  brought  in  a 
substitute.  Now  the  question  is  upon  the  substitute. 

Mr.  Jolley :     This  is  an  amendment. 

The  President:     The  vote  then  is  upon  the  amendment. 

The  Chair  being  in  doubt  roll  call  was  resorted  to. 

Mr.  Edgerton,  of  Davison:  At  this  time  I  desire  to  state 
to  the  Convention  my  reasons  for  giving  my  vote  in  the  way  I 


240  SOUTH  DAKOTA  DEBATES  1889 

voted  upon  this  question.  It  is  known,  perhaps  to  this  Convention, 
the  position  I  took  in  reference  to  the  Omnibus  Bill,  when  this  Con- 
vention assembled.  I  have  not  changed-  my  attitude  upon  hat 
question.  I  believed  then  that  this  Convention  had  no  power 
except  those  powers  expressed  by  the  Omnibus  Bill.  It  was  the 
charter  of  the  powers  of  this  Convention.  That  I  may  not  be  mis- 
taken I  will  read  the  section  under  which  we  have  the  right  to  re- 
apportion  the  State.  In  defining  the  powers  of  this  Convention 
the  Omnibus  Bill  provides  the  scope  and  powers  of  this  Conven- 
tion: "That  they  shall  also  submit  the  articles  and  propositions 
separately  submitted  on  that  election,  including  the  question  of 
locating  the  temporary  seat  of  government  with  such  changes  only 
as  relate  to  the  main  boundary  of  the  proposed  state  and  the  re- 
apportionemnt  of  the  Judicial  and  Legislative  districts,  and  such 
amendments  as  may  be  necessary  in  order  to  comply  with  the  pro- 
visions of  this  Act." 

Now,  we  admit  this,  if  it  is  necessary  to  increase  the  number 
of  circuits  in  re-apportioning  the  State  of  South  Dakota,  then  this 
Convention  has  the  power  to  increase  the  number  of  circuits.  But 
if  it  is  not  necessary  to  increase  the  number  of  circuits  then  it  does 
not  necessarily  fall  within  the  powers  of  this  Convention  as  granted 
to  us  by  the  Omnibus  Bill.  There  are  three  inhibitions  in  the  Con- 
stitution in  reference  to  the  Legislative  and  Judicial  Department 
so  far  as  the  re-apportionment  is  concerned.  In  the  Legislative 
Department  of  Article  3  of  the  Constitution  in  Section  2,  reads  as 
follows:  "The  number  of  members  of  the  House  of  Representatives 
shall  not  be  less  than  seventy-five  (75)  nor  more  than  one  hundred 
and  thirty-five  (135).  The  number  of  members  of  the  Senate  shall 
not  be  less  than  thirty-five  (35),  nor  more  that  forty-five  (45)." 

There  is  not  a  member  of  this  Convention  that  will  claim  that 
this  Convention  has  a  right  to  go  beyond  the  limits  provided  in 
nection  2.  In  reference  to  the  Supreme  Court  the  limitation  in 
that  is  this:  Section  6  of  Article  V,  reads,  "The  number  of  said 
judges"  that  is  the  Supreme  Judges — "The  number  of  said  judges 
and  districts  may,  after  five  years  from  the  admission  of  this  state 
under  this  Constitution,  be  increased  by  law  to  not  exceeding  five." 
There  is  not  a  member  of  this  Convention  that  will  claim  that  this 
Convention  has  the  power  to  make  four  or  five  Supreme  Judges. 
This  is  a  limitation  upon  our  powers;  consequently  it  will  not  be 
claimed  the  Supreme  Court  shall  consist  of  more  than  three  judges 


JUDICIAL  CIRCUITS  241 


for  the  first  five  years.  Under  the  head  of  Circuit  Judges,  the 
limitation,  in  my  opinion,  is  just  as  absolute:  "The  Legislature 
may,  whenever  two-thirds  of  the  members  of  each  house  shall  con- 
cur therein,  increase  the  number  of  judicial  circuits  and  judges 
thereof,  and  divide  the  state  into  judicial  circuits  accordingly, 
taking  care  that  they  may  be  formed  of  compact  territory  and  be 
bounded  by  county  lines,  but  such  increase  of  number  or  change 
in  the  boundaries  of  districts  shall  not  work  the  removal  of  any 
judge  from  his  office  during  the  term  for  which  he  shall  have  been 
elected  or  appointed."  The  proposition  is  this:  That  this  Con- 
vention has  no  power  in  re-apportioning  this  State  for  legislative 
purposes  to  increase  the  number  of  circuits  beyond  the  limit  pro- 
vided by  this  Constitution,  nor  the  number  of  the  House  beyond 
that,  nor  has  this  Convention  the  power  to  increase  the  number  of 
judges  upon  the  Supreme  Bench  for  the  next  five  years;  nor,  in 
my  opinion,  have  we  any  power  to  increase  the  number  of  circuits 
except  by  two-thirds  vote  of  the  Legislature.  That  •  Legislature 
assembles  within  ninety  days ;  that  Legislature  by  a  two-thirds 
vote,  not  by  a  bare  majority,  may  increase  the  number  of  circuits 
to  seven  or  eight  or  nine.  Consequently  I  am  not  in  favor  of  the 
motion ;  that  this  Convention  has  no  power  to  go  beyond  the  number 
fixed  by  the  Convention  of  1885,  believing  as  I  do  that  this  is  one 
of  the  limitations  placed  upon  this  body.  I  shall  be  obliged  to 
vote  against  this  motion.  This  question  rests  with  me,  not  upon 
a  question  of  politics,  but  upon  a  question  of  law ;  upon  that  I  base 
my  reasons  for  my  vote  upon  this  question.  Mr.  Chairman,  I 
vote  no. 

Mr.  Humphrey:  If  it  would  be  allowed,  I  would  ask  a  ques- 
tion. Would,  in  your  judgment,  our  increasing  the  number  in 
any  manner  endanger  our  admission  under  the  Presidential  Proc- 
lamation? 

Mr.  Edgerton,  of  Davison:  I  do  not  believe  that  I  would  say, 
for  this  reason:  It  is  a  question,  I  admit,  upon  which  lawyers 
differ;  I  admit  the  fact  that  a  large  majority  of  the  lawyers  of  this 
Convention  differ  with  me  upon  this  question ;  it  being  a  question 
upon  which  lawyers  may  honestly  differ  and  come  to  different 
conclusions.  I  do  not  believe  the  President  of  the  United  States 
will  consider  it  of  sufficient  importance  to  bar  admission  under  the 
proclamation. 

The  amendment  was  lost  by  a  vote  of  22  ayes  and  39  nays. 


242  SOUTH  DAKOTA  DEBATES,  1889. 

Mr:  Hayes:  I  move  this  as  an  amendment  to  Section  5,  by 
striking  out  the  words  "from  districts".  Also  to  amend  Section 
6  by  striking  out  the  words  "and  districts."  Section  10  by 
striking  out  the  words  "and  at  the  time  of  his  election  be  a  resi- 
dent of  the  district  from  which  he  is  elected." 

Mr.  Hole:  I  rise  to  a  point  of  order;  the  previous  question 
has  been  called  and  that  has  not  been  settled. 

The  Chairman:  I  think  you  are  correct ;  the  previous  question 
having  been  moved. 

The  Chairman:  The  question  now,  is  upon  the  original  mo- 
tion as  offered  by  the  Chairman  of  the  Judiciary  Committee.  Mr. 
Sterling,  how  will  you  vote? 

A  Voice:     By  ayes  and  nays. 

Mr.  Cooper:     I  desire  to  change  my  vote  from  aye  to  no. 

Mr.  Heninger:     I  desire  to  change  my  vote  from  aye  to  no. 

The  report  was  adopted  by  a  vote  of  42  ayes  and  19  nays. 

Mr.  Wescott:  I  move  the  report  be  made  the  special  order  for 
tomorrow. 

Mr.  Peck:     Is  not  it  adopted? 

Mr.  Hole:     I  move  to  reconsider  this  question. 

Mr.  Humphrey:       I  move  the  motion  to  reconsider  be  tabled. 

Which  motion  received  a  second,  and  prevailed  upon  reaching 
a  vote. 

Mr.  Willis:     I  move  we  do  now  adjourn. 

The  motion  to  adjourn  prevailed  and  the  Convention  was 
adjourned  until  tomorrow,  at  two  o'clock. 


TWENTY-SECOND  DAY. 

Sioux  Falls,  Dakota,  July  25,  1889. 

Two  o'clock  P.  M. 

Pursuant  to  adjournment,  Convention  convened  with  Pres- 
ident Edgerton  in  the  Chair. 

Rev.  Mr.  Clough:  Almighty  God,  our  Heavenly  Father,  we 
thank  Thee  for  Thy  merciful  providences  toward  us,  and  the  com- 
forts we  have  enjoyed.  And  no  was  we  come  to  the  knotty  problems 
in  our  work,  we  pray  that  Thou  wilt  give  us  wisdom,  and  strength 
and  discretion,  and  understanding  that  all  these  things  may  be  done 
as  they  ought  to  be  done ;  that  we  may  further  righteousness  and 
good  government  in  this  new  State.  Guard  not  only  the  interests 
of  the  State,  but  those  who  are  near  and  dear  to  us  at  home;  for 
Christ's  sake,  we  ask  these  blessings. 

AMEN. 

Mr.  Young:  I  move  that  the  further  reading  of  the  report 
as  "ar  as  it  relates  to  the  reports  be  dispensed  with.' 

Motion  prevailed. 

The  "President:  Communications  and  Presentations  of  pe- 
titions. 

Unfinished  business  of  the  previous  day. 

Reports  from  standing  Committees. 

Mr.  Humphreys  Committee  on  Printing  make  the  following 
report: 

July  25,  1889 
MR.  PRESIDENT: 

Your  Committee  on  Printing  have  had  the  desirability  of  put- 


244  SOUTH  DAKOTA  DEBATES  1889 

ting  into  the  hands  of  the  people,  the  Constitution,  submitted  to 
them  by  this  Convention,  under  careful  consideration,  have  in 
structed  me  to  report  that  they  recommend  that  this  Convention 
do  provide  for  the  publication  and  distribution  of  200,000  news- 
paper supplements  containing  the  Constitution  and  Schedule, 
10,000  of  wh'ch  shall  be  printed  in  the  German,  and  10,000  in  the 
Scandinavian  language. 

All  of  which  is  respectfully  submitted, 

H.  A.  HUMPHREY, 
Chairman  Committee. 

Mr.  Sterling:  The  Judiciary  Committee  have  a  report  on  a 
matter  rererred  to  it. 

Mr.  McFarland  sends  a  report  to  the  Secretary's  desk. 

The  Clerk  reads  the  report  of  the  Committee  on  Judiciary 
as  follows: 

MR.  PRESIDENT: — 

Your  Committee  on  Judiciary,  to  whom  was  referred  the  ques- 
tion as  to  whether  this  Convention  has  the  legal  power  to  provide 
for  the  election  of  a  circuit  clerk  at  the  October  election,  direct 
me  to  report  that  the  Committee,  having  had  said  question  under 
consideration,  are  of  the  opinion  that  the  Convention  has  the  legal 
power  to  provide  for  such  election,  and  recommend  that  provision 
for  the  election  of  such  officer  be  made  in  the  Schedule  and  Ordi- 
nance. 

THOMAS  STERLING, 
Chairman  Judiciary  Committee. 

Clerk  reads  the  report  of  the  Committee  on  Legislative  Depart- 
ment, as  follows: 

Sioux  Fa'ls,  July  25 
MR.  PRESIDENT. — 

Your  Committee  on  Legislative,  to  whom  was  referred  Article 
III,  entitled,  "Legislative  Department",  has  considered  the  same 
and  have  compared  said  Article  III  with  the  Sioux  Falls  Consti- 
tution and  the  Act  of  Congress  known  as  the  "Omnibus  Bill",  and 
have  instructed  me  to  report  the  following  as  Article  III  of  the 


RELIGIOUS  TOLERATION  245 

Constitution,  and  that  the  same  is  in  accordance  with  the  Sioux 
Falls  Constitution  and  the  Omnibus  Bill. 
No  amendments  made. 

A.  B.  McFARLAND, 

Chairman 
SAMUEL  A.  RAMSEY, 

B.  F.  LYONS, 
JOSEPH  ZITKA. 

Mr.  Hole  offered  a  substitute  as  follows: 

Sioux  Falls,  D.  T.,  July  25,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Schedule  and  Submission,  to  whom  was 
referred,  "An  ordinance  irrevocable  without  the  consent  of  he 
United  States  and  the  people  of  the  State,  relating  to  religious  tol- 
eration, public  lands,  taxation  of  lands,  debts  of  the  Territory  of 
Dakota  and  public  schools,"  have  had  the  same  under  consider- 
ation and  have  instructed  me  to  report  as  follows: 

That  the  following  be  a  substitute  for  the  above  described 
ordinance,  and  that  the  following  be  substituted  as  Article  XXII 
of  the  Sioux  Falls  Constitution,  as  being  directed  by.  the  Act  of 
Congress,  known  as  the  "Omnibus  Bill",  and  your  Committee 
recommend  that  the  following  be  adopted  as  Article  XXII  "Com- 
pact with  the  United  States",  and  that  the  same  be  adopted  by 
this  Convention. 

ARTICLE  XXII. 

COMPACT    WITH    THE    UNITED   STATES. 

The  following  article  shall  be  irrevocable  without  the  consent 
of  the  United  States  and  the  people  of  the  State  of  South  Dakota 
expressed  by  their  Legislative  Assembly. 

First:  That  perfect  toleration  of  religious  sentiment  shall 
be  secured,  and  that  no  inhabitant  of  this  State  shall  ever  be  mo- 
lested in  person  or  property  on  account  of  his  or  her  mode  of  re- 
ligious worship. 

Second:  That  we,  the  people  inhabiting  the  State  of  South 
Dakota  do  agree  and  declare,  that  we  forever  disclaim  all  right  and 
title  to  the  unappropriated  public  lands  lying  within  the  boundaries 
of  South  Dakota ;  and  to  all  lands  lying  within  said- limits  owned  and 
held  by  any  Indian  or  Indian  tribes,  and  that  until  the  title  thereto 
shall  have  been  extinguished  by  the  United  States  the  same  shall 
be  and  remain  subject  to  the  disposition  of  the  United  States  and 
said  Indian  lands  shall  remain  under  the  absolute  jurisdiction  and 
control  of  the  Congress  of  the  United  States. 

That  the  lands  belonging  to  citizens  of  the  United  States  re- 


246  SOUTH  DAKOTA  DEBATES  1889 

siding  without  the  said  State,  shall  never  be  taxed  at  a  higher 
rate  than  the  lands  belonging  to  residents  of  this  State.  That  no 
taxes  shall  be  imposed  by  the  State  of  South  Dakota  on  lands  or 
property  therein  belonging  to  or  which  may  hereafter  be  purchased 
by  the  United  States,  or  reserved  for  its  use.  But  nothing  herein 
shall  preculde  the  State  of  South  Dakota  from  taxing  as  other 
lands  are  taxed,  any  lands  owned  or  held  by  any  Indian  who  has 
severed  his  tribal  relation  and  has  obtained  from  the  United  States, 
or  from  any  person  a  title  thereto  by  patent  or  other  grant,  save 
and  xcept  such  lands  as  have  been,  or  may  be  granted  to  any 
Indians  or  Indians  under  any  act  of  Congress  containing  a  provision 
exempting  the  lands  thus  granted  from  taxation,  all  such  lands 
which  may  have  been  exempted  by  any  grant  or  law  of  the  United 
States,  shall  remain  exempt  to  the  extent,  and  as  prescribed  by 
such  act  of  Congress. 

Third:  That  the  State  of  South  Dakota  shall  assume  and 
pay  that  portion  of  the  debts  and  liabilities  of  the  Territory  of 
Dakota  as  provided  in  this  Constitution. 

Fourth:  That  provision  shall  be  made  for  the  establishment 
and  maintainance  of  systems  of  public  schools,  which  shall  be  open 
to  all  the  children  of  this  State,  and  free  f .  om  sectarian  control. 

By  order  of  Committee, 

BY  L.  H.  HOLE,  Chairman. 

Mr.  Jolley:  That  was  a  mistake;  there  are  two  reports  ac- 
companying that. 

The  President:  Consideration  of  reports  of  Standing  Com- 
mittees. 

Report  of  the  Committee  on  Legislative  Apportionment. 

Mr.  Van  Tassel:     I  move  that  the  report  be  adopted. 

Which  motion  received  a  second. 

The  Clerk  reads  at  this  point  the  report  of  the  Committee  on 
Legislative  Apportionment  as  follows: 

Sioux  Falls,  July  24,   1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Congressional  and  Legislative  Apportion- 
ment, to  whom  was  referred  Article  XIX  of  the  Constitution,  hav- 
ing had  the  same  under  careful  consideration,  beg  leave  to  submit 
the  following  report  relative  thereto,  and  in  which  report  there  are 
no  changes  of  the  Constitution,  except  as  relates  to  the  reappor- 
tionment  of  districts  as  provided  for  in  the  Omnibus  Enabling 
Act,  and  adding  thereto  a  provision  that  the  State  shall  constitute 
one  Congressional  district,  from  which  two  (2)  Congressmen  shall 
be  elected  at  large.  All  of  which  changes  are  within  the  provisions 
of  the  Enabling  Act,  and  herewith  report  Article  XIX  with  said 
changes  incorporated  therein  and  respectfully  recommend  the 


LEGISLATIVE  APPORTIONMENT  247 

adoption  of  the  changes  and  the  resubmission  of  the  Article  as 
amended. 

All  of  which  is  respectfully  submitted, 

C.  H.  VAN  TASSEL, 

Chairman. 
W.  H.  MATSON, 
J.  V.  WILLIS, 
R.  F.  LYONS, 

A.  O.   RlNGSRUD, 

JOSEPH  ZITKA, 
M.  P.  STROUPE, 
WM.  S.  O'BRIEN, 
SANFORD  PARKER, 
E.  E.  CLOUGH, 
M.  R.  HENINGER, 
I.  ATKINSON, 
C.  R.  WESCOTT, 
T.  W.  P.  LEE, 
E.  G.  EDGERTON, 
C.  A  HOULTON, 
J.  G.  DAVIES, 
H.  M.  WILLIAMSON, 
S.  F.  HUNTLEY, 
J.  A  FOWLES, 
GEO.  H.  CULVER, 

T.  F.  DlEFENDORF, 

C.  G.  COATS, 

T.  W.  THOMPSON. 

The  President:  The  report  of  the  Committee  on  Legislative 
Apportionment  is  before  the  Convention  and  the  Chairman  of  the 
Committee  moves  its  adoption.  Is  the  Convention  ready  for  the 
question  ? 

Mr.  Sterling:  I  move  as  a  substitute  that  the  report  of  this 
Committee  be  postponed  until  tomorrow;  I  will  say  that  this 
report  is  just  received ;  we  have  had  no  opportunity  to  examine  it 
until  the  last  few  minutes;  it  is  an  important  report;  I  think  we 
should  have  further  opportunity  to  investigate  it. 

Mr.  Wood:  I  would  suggest  that  it  be  postponed  until  eight 
o'clock  tonight,  as  I  understand  we  meet  this  evening. 

The  motion  to  postpone,  by  rising  vote,  was  declared  lost. 

The  President:  The  question  before  the  Convention  is  upon 
the  adoption  of  the  report  of  the  Committee  on  Apportionment. 

A  Voice:     Let  it  be  by  roll  call. 

Which  was  accordingly  done,  with  the  following  result: 

Those   voting   aye:     Anderson,    Atkinson.    Buechler,   Clough, 


248  SOUTH  DAKOTA  DEBATES  1889 

Cook,  Cooper,  Corson,  Couchman,  Craig,  Culver,  Da  vies,  Dickinson, 
Diefendorf,  Downing,  Eddy,  Edgerton,  of  Yankton,  Fellows, 
Fowles,  Goddard,  Hall,  Harris,  Hartley,  Heninger,  Hole,  Houlton, 
Huntly,  Humphrey,  Jeffries,  Jolley,  Kimball,  Lee,  Lyons,  Matson, 
O'Brien,  Peck,  Ramsey,  Ringsrud,  Schollard,  Sherwood  Smith 
Spooner,  Stoddard,  Stroupe,  Thompson,  Van  Buskirk,  Van  Tassel 
Wescott,  Wheeler,  Whitlock,  Willis,  Williams,  Williamson,  Wood 
of  Pennington,  Wood  of  Spink,  Young,  Zitka,  and  Mr.  President. 
(57). 

Those  voting  no:     Gifford,  McFarland,  and  Sterling.      (3). 

Mr.  Harris:  I  move  to  reconsider  the  vote  by  which  the  re- 
port was  adopted  and  lay  the  motion  upon  the  table. 

Which  motion  prevailed. 

The  President:     Report  of  Select  Committees. 

Mr.  Clough  offered  the  following  report: 

Sioux  Falls,  Dakota,  July  25,  1889. 
MR.  PRESIDENT: — 

Your  Special  Committee  to  whom  was  referred  the  com- 
munication from  the  officers  of  the  American  Sabbath  Union,  hav- 
ing carefully  examined  the  same  and  the  matters  therein,  referred 
to,  beg  leave  to  submit  the  following  report. 

That  in  our  judgment,  this  Convention  acting  under  enumer- 
ated powers  fixed  by  and  contained  in  the  Act  of  Congress  known 
as  the  "Omnibus  Bill",  have  no  power  to  change,  alter  or  amend 
the  Sioux  Falls  Constitution  of  1885.  by  inserting  the  provis  on 
named  in  said  communication,  nor  any  similiar  provision,  for  the 
reason  that  the  power  to  do  so  is  not  conferred  upon  th's  Convention 
by  said  act  of  Congress. 

Your  Committee  further  recommends  that  the  Chief  Clerk  of 
this  Convention  send  in  writing  to  the  Hon.  Elliott  F.  Shepard 
Gen.  O.  O.  Howard,  U.  S.  A.,  Rev.  J.  H.  Knowles,  D.  D.,  Rev. 
Wilbur  F.  Crafts,  D.  D.'  officers  of  the  American  Sabbath  Union, 
the  following  communication: 
GENTLEMEN: — 

We,  the  Constitutional  Convention  of  South  "Dakota,  hereby 
acknowledge  the  receipt  of  your  telegraphic  communication  bear- 
ing date  of  July  20,  1889,  recommending  the  insertion  into  the 
Constitution  of  South  Dakota  of  certain  provisions  relating  to  the 
observance  of  the  Sabbath  Day. 

We  have  the  honor  to  inform  you  that  your  communication 
was  referred  to  a  special  committee  of  this  Convention  and  said 
Committee,  after  careful  and  mature  consideration  of  your  com- 
munication, made  and  submitted  to  this  Convention  the  following 
report: 

Your  Special  Committee  to  whom  was  referred  the  com- 
munication from  the  officers  of  the  American  Sabbath  Union,  hav- 


ROUTINE  249 


ing  carefully  examined  the  same  and  the  matters  therein  referred 
to,  beg  leave  to  submit  the  following  report: 

That  in  our  judgment,  this  Convention,  acting  under  enumer- 
ated powers  fixed  by  and  contained  in  the  Act  of  Congress  known 
as  the  "Omnibus  "Bill,  have  no  power  to  change,  alter  or  amend 
the  Sioux  Falls  Constitution  of  1885,  by  inserting  the  provisions 
named  in  said  communication,  nor  any  similiar  provision  for  the 
reason  that  the  power  to  do  so  is  not  conferred  upon  this  Convention 
by  said  act  of  Congress,  which  said  report  was  unanimoulsy  adopted 
by  the  Convention. 

It  is  therefore  apparent  that  no  further  action  can  be  taken 
by  this  Convention  on  your  communication  and  the  matters  there- 
in re  "erred  to. 

Respectfully  submitted, 

E.  E.  CLOUGH, 
S.  F.  HUNTLEY, 
J.  V.  WILLIS, 
SAMUEL  A.  RAMSEY, 
CHAUNCEY  L.  WOOD. 

Mr.  Clough:     I  move  the  adoption  of  the  report. 

Which  motion  received  a  second  and  on  reaching  a  vote,  pre- 
vailed. 

Mr.  Wood:  I  desire  to  move  the  adoption  now  of  the  report 
of  the  Judiciary  Committee,  relative  to  the  special  matter  referred 
to  it,  relating  to  the  Clerks  of  the  Circuit  Court  at  the  coming  elec- 
tion. 

The  President :     It  can  only  be  taken  up  by  consent. 

Mr.  Hole:  I  think  it  is  beyond  our  powers  to  take  it  up  and 
adopt  it  now,  because  other  Committees  have  decided  to  the  con- 
trary. I  would  think  it  would  be  better  to  refer  it  to  a  special 
committee. 

Mr.  Van  Buskirk:  I  desire  to  suggest  that  there  is  some  dif- 
ference of  opinion  in  that  Committee,  whether  it  is  thought  best 
to  submit  a  minority  report  I  am  not  able  to  say.  As  far  as  my 
own  opinion  is  concerned  I  am  opposed  to  it ;  I  do  not  think  it  is 
within  the  purview  of  the  Convention.  I  object  to  its  being  taken 
up  at  this  time. 

The  President:  Having  passed  the  order  provided  by  the 
rules,  I  am  of  the  opinion  that  it  cannot  now  be  considered  only 
by  suspension  of  the  rules. 

Mr.  Wood:     I  move  that  the  rules  be  suspended  that  the  Con 


250  SOUTH  DAKOTA  DEBATES  1889 

vention  consider  the  report  of  the  Judiciary  Committee  made  this 
morning. 

•    The  motion  was  declared  lost. 

Mr.  Humphrey:  For  two  days  the  report  of  the  Committee 
on  Education  and  School  Lands  was  deferred  by  request  and  if 
it  would  be  in  order  before  we  pass  that  head, — 

The  President:  That  is  under  a  special  order;  as  soon  as  we 
reach  that  order  of  business  it  will  be  considered. 

The  President:     Reports  of  Select  Committees. 

Consideration  of  reports  of  Select  Committees. 

Presentation  of  Resolutions  and  Propositions  relating  to  the 
Constitution. 

Special  Orders  are  now  before  the  Convention. 

MR.    PRESIDENT: — 

Your  Committee  on  Education  and  School  Lands,  to  whom 
was  referred  Article  (8)  Eight  of  the  Constitution,  entitled  "Educa- 
tion and  School  Lands",  having  had  the  same  under  careful  con- 
sideration, beg  leave  to  report  the  following  changes'  and  amend- 
ments necessary .  to  comply  with  the  provisions  of  the  Omnibus 
Enabling  Act,  to-wit: 

First:     To  insert  the  words  "and  other"  in  the  title. 
Second:     To  strike  out  in  the,  first  sentence  of  Section  5  the 
words,  viz:     "Unless,  after  the  year  A.  D.  nineteen  hundred,  two 
sucessive  Legislatures  concur  in  a  law  otherwise  directing". 

Third:  To  insert  the  word  '  South"  bef  re  Dakota  in  Section 
II. 

Fourth:  To  insert  the  words,  "and  all  lands  donated  for  other 
than  educational  and  charitable  purposes,"  after  the  word  "section" 
in  the  second  line  of  Section  8,  and  we  herewith  report  Article  VIII, 
with  the  changes  and  amendments  aforesaid  incorporated  therein. 
And  we  respectfully  recommend  the  adoption  of  the  amend- 
ments and  the  submission  of  the  Article  as  amended. 

H.  A  .HUMPHREY, 
Acting  Chmn.  of  Committee. 
C.  G.  COATS, 
F.  G.  Young, 
J.  DOWNING, 
S.  S.  PECK, 
W.  H.  MaTsoN, 
GEO.  H.  CULVER, 
S.  F.  HUNTLEY. 

Mr.  Humphrey:  I  move  the  adoption  of  the  report  of  the 
Committee. 

Mr.  Corson:     I  move  to  strike  out  of  the  report,  Amendment 


CAPITOL  LANDS  .  251 


No.  4,  which  is  the  last  amendment,  and  to  substitute  for  Sec. 
8,  as  reported,  the  original  Sec.  8,  of  the  Sioux  Falls  Constitution. 
The  object,  I  understand,  of  the  amendment  seems  to  be  to  in- 
clude in  that  provision,  railroad  and  school  and  University  lands; 
the  lands  appropriated  by  the  National  Government  for  a  capitol, 
fifty  thousand  acres. 

Now,  the  first  point  I  make  in  this  motion  is,  that  an  amend- 
ment of  the  Constitution  is  not  required  or  allowed.  Under  that 
provision.  Congress  has  donated  to  us  for  capital  purpose's  fifty 
thousand  acres  of  land,  or  for  buildings  at  the  capital.  There  is 
nothing  in  the  Enabling  Act  requiring  that  to  be  included  in  the 
provision,  providing  for  the  sale  of  school  lands;  there  is  nothing 
in  our  Constitution  requiring  it.  It  is  an  amendment  which  would 
be  like  any  other  amendment  proposed  to  our  Constitution  and  it 
is  not  made  necessary  by  any  provision  of  the  Enabling  Act  and  is 
therefore  improperly  made  at  this  time;  it  is  not  permissible,  in 
other  words. 

Second:  I  make  two  propositions,  that  is  that  it  would  be 
injudicious  at  this  time  to  include  that  land  appropriated  for  the 
capital  buildings  in  the  provisions  relating  to  our  school  and  Uni- 
versity lands.  We  all  know  that  the  system  provided  for  these 
school  and  University  lands  is  quite  complicated ;  that  they  cannot, 
be  sold  for  less  than  $10  per  acre;  that  special  appraisals  have  to 
be  made ;  have  to  be  sold  on  long  time,  and  a  great  many  provisions 
which  are  perhaps  proper  enough  as  to  the  educational  lands 
so  that  we  could  easily  dispose  of  them.  This  question  of  the 
provision  made  for  the  capitol  buildings  is  something  that  will 
require  a  different  treatment.  It  cannot  be  very  long  before 
we  will  have  a  fixed  place  for  capital  and  we  will  need  buildings. 
Now, "will  this  action  be  wise  or  judicious?  Shall  we  require  the 
people  of  the  Territory  to  put  their  hands  in  their  pockets  and 
build  the  capitol  that  subsequent  generations  may  get  the  benefit 
of  the  rise  pf  these  lands?  I  think  not;  therefore  for  both  rea- 
sons. First:  That  it  is  not  permissible  to  make  this  amend- 
ment, and  second:  That  it  will  be  injudicious  to  make  it.  I 
move  the  amendment. 

Now,  in  order  that  the  Convention  may  fully  understand  it 
if  they  will  refer  to  Section  17  of  the  Omnibus  Bill,  they  will  find 
in  the  second  subdivision  the  following  language: 

That  in  lieu  of  the  grant  of  land  for  purposes  of  internal  im- 


252  SOUTH  DAKOTA  DEBATES  1889 

provement  made  to  new  states  by  the  8th  Section  of  the  Act  of 
September  4th,  1841,  which  act  is  hereby  repealed  as  to  the  states 
provided  for  by  this  act,  and  in  lieu  of  any  claim  or  demand  by  the 
said  states,  or  either  of  them,  under  the  act  of  September  1st,  1850, 
and  in  Section  2479  of  the  revised  statutes,  making  a  grant  of  swamp 
and  overflowed  lands  to  certain  states,  which  grant  is  hereby 
declared  is  not  extended  to  the  states  provided  for  by  this  act,  and 
in  lieu  of  any  grant  of  saline  lands  to  any  states,  the  following 
grants  of  land  are  hereby  made,  to-wit: 

To  the  State  of  South  Dakota:  For  the  School  of  Mines,  40,- 
000  acres;  for  the  Reform  School,  40,000  acres;  for  the  Deaf  and  Dumb 
Asylum,  40,000  acres;  for  the  Agricultural  College,  40,000  acres: 
for  the  University,  40,000  acres;  for  the  State  Normal  Schools,  80,- 
000  acres;  for  publ  c  buildings  at  the  capital  of  said  State,  50,000 
acres;  and  for  such  other  educational  and  chartiable  purposes  as 
the  Legis  ature  of  said  State  may  determine,  170,000  cres;  in  all. 
500,000  acres. 

By  turning  to  Section  8  of  the  original  act  of  our  Const  tution 
Section  8,  of  Article  VIII,  it  will  be  found  that  there  is  no  necessity 
for  this  amendment  as  these  lands  come  within  the  provisions  of 
that  section  clearly.  It  reads:  "All  lands  mentioned  in  the  pre- 
ceding sections".  The  preceding  section, — Section  7  of  Article  VII 
reads:  "All  lands,  money  or  other  property  donated,  granted  or 
received  from  the  United  States  or  any  other  source  for  a  University- 
Agricultural  College,  Normal  School  or  other  educational  or  char- 
itable institution  or  purpose,  and  the  proceeds  of  all  such 
lands  and  other  property  so  received  from  any  source,  shall 
be  and  remain  perpetual  funds,  the  interest  and  income  of  which, 
together  with  the  rents  of  all  such  land  as  may  remain  unsold,  shall 
be  inviolably  appropriated  and  applied  to  the  specific  objects  of 
the  grants  or  gifts.  The  principal  of  every  such  fund  may  be  in- 
creased, but  shall  never  be  diminished,  and'the  interest  and' income 
only,  shall  be  used.  Everv  fund  shall  be  deemed  a  trust  fund  held  by 
the  State,  and  the  State  shall  make  good  all  losses  thereform  that 
shall  occur  in  any  manner."  Section  8,  which  I  propose  as  an 
an  amendment,  is  as  follow  :  "All  lands  mentioned  in  the  pre- 
ceding section  shall  be  appraised  and  sold  in  the  same  manner 
and  by  the  same  officers  and  board  under  the  same  limitations,  and 
subject  to  all  the  conditions  as  to  price,  sale,  and  approval  provided 
above  for  the  appraisal  and  sale  of  lands  for  the  benefit  of  public 
schools,  but  a  distinct  and  separate  account  shall  be  kept  by  the 
proper  officers  of  each  of  such  funds."  Now,  Mr.  President,'  and 
:  entlemen  of  the  Convention,  you  will  see,  taking  these  two  sections 
together,  all  the  lands  that  have  been  granted  by  Congress  and  by 
virtue  of  this  section,  becoming  part  and  parcel  of  this  section 
except  this  50,000  acres  that  has  been  mentioned  as  for  the  capital 
buildings.  The  object  of  this  amendment  is  to  include  that  50,- 
000  acres.  I  insist  that  it  is  not  a  proper  amendment  to  make  at 


PUBLIC  LANDS  253 


this  time.  I  further  argue  that  it  is  not  the  object  of  Congress  in, 
making  this  donation  that  they  should  not  be  included  among  that 
class  of  lands  for  the  reason  that  they  fixed  no  limitation  to  the 
price  of  these  lands  as  I  undertand  it,  but  for  the  other  lands  donated 
for  educational  purposes  they  have  made  they  limit  at  $10  per  acre 
so  that  they  properly  come  within  the  section  that  I  have  read.  I 
argue  therefore  that  the  amendment  should,  be  made  to  this 
report  and  that  these  50,000  acres  be  left?  to  the  disposal  of  the 
Legislature  in  the  manner  that  they  deem  most  judicious  for  the 
buildings  at  the  capital.  I  believe  the  Legislature  can  be  trusted 
in  this  manner;  they  will  all  have  an  interest  in  it  to  get  the  largest 
price  and  make  just  use  of  the  proceeds. 

The   amendment   offered  by   Mr.   Corson  was   at   this   point 
seconded. 

Mr.  Humphrey:  I  have  not,  before,  had  any  opportunity 
to  present  to  the  Convention,  the  reasons  that  lead  the  Committee 
to  recommend  the  amendment  in  their  report.  In  the  first  place, 
they  found  in  the  Constitution,  restrictions  and  safeguards  thrown 
around  the  lands  that  the  state  then  possessed  or  was  likely  to 
possess.  Following  in  the  spirit  of  the  Constitution  and  the 
Enabling  Act,  the  Committee  felt  that  they  should  provide  the 
same  restrictions  for  these  lands.  The  intention  of  the  report  is 
to  protect  the  lands  coming  into  possession  of  the  State  from  any 
possible  chance  of  slipping  away  from  the  people.  It  is  well  known 
in  the  history  of  states,  and  the  state  no  further  east  of  ,us  than 
Iowa,  when  they  had  like  us,,  donations  of  land,  that  they  were 
careless  in  their  legislation  and  before  they  were  aware  of  their 
folly  and  turned  to  see  where  they  were,  they  were  gone.  As  the 
Committee  understood  this,  and  as  I  now  understand  it,  the  result 
of  these  words  in  the  Eighth  Section  to  simply  throw  around  these 
other  lands  the  restrictions  as  .to  appraisal  and  approval  of  sale. 
Further  than  that,  as  we  understand,  and  as  we  find  in  the  Omnibus 
Bill,  other  lands  than  those  in  Section  XVII  was  donated  to  the 
State,  including  large  lands  for  the  penitentiary  and  .such  other 
institutions  that  are  other  than  educational  lands.  The  clause  was 
to  protect  the  people,  not  to  force  the  burden  upon  them  to  build 
the  capitol  by  taxation.  We  are  not  likely  to  be  called  upon  to 
build  a  capitol  for  South  Dakota  for  five  years,  judging  by  the 
innumerable  contestants.  This  next  year  they  will  vote  for  tem- 
porary location  of  the  capital,  then  after  that  the  two  largest  places 
will  vote.  We  will  not  see  this  election  contest  settled  inside  of 
five  years.  It  is  a  fair  presumption  that  many  of  these  lands  will 


254  SOUTH  DAKOTA  DEBATES  1889 

be  of  the  value  of  ten  dollars  per  acre  even  at  that  time,  and  even 
then  you  would  not  have  the  right  to  dispose  of  these  lands  to 
build  the  capitol,  but  under  the  Constitution,  all  that  would  be 
necessary  would  be  to  submit  to  the  people  at  the  next  election, 
and  if  they  desire  to  sell  the  lands  for  less  money  at  that  time  to 
build  the  capitol  it  will  be  within  their  power  to  do  so.  It  seems  to 
your  Committee  that  we  should  assist  in  putting  these  restrictions 
and  safeguards  around  these  lands  till  after  that  time. 

Mr.  Davies:  I  would  ask  if  the  words  "educational  and  char- 
itable" would  not  cover  the  penitentiary  lands  and  other  lands  re- 
ferred to  by  the  gentleman  from  Faulk?  The  question  in  my  mind 
is  whether  that  clause  did  not  cover  all  the  lands. 

Mr.  Humphrey:  I  would  say  that  lands  donated  for  educa- 
tional and  charitable  institutions  are  generally  spoken  of  as  "school 
lands",  "Agricultural  College  lands". 

'Mr.  Hole:  I  wish  to  raise  this  point.  Under  the  provision 
of  that  part  of  the  Constitution  as  submitted  by  the  Committee, 
it  provides  that  these  lands  shall  be  appraised  and  sold  in  a  certain 
way.  It  provides  further  that  this  shall  be  a  permanent  fund; 
that  nothing  but  interest  is  to  be  used,  as  I  understand  it.  The 
intention  of  giving  50,000  acres  of  land  to  build  the  capital  buildings 
would  hardly  be  consistent  with  the  general  endowment  fund.  In 
the  proposed  part  of  the  Constitution,  as  submitted,  the  50,000 
acres  will  be  sold  and  that  monev  kept  as  an  endowment  fund  for 
the  capitol,  that  was  not  the  intention.  The  intention  was  to  sell 
the  land  and  build  the  buildings  with  it,  not  to  endow  the  building 
of  the  capital 

Again,  the  fact  that  we  do  not  include  it  and  put  it  under  the 
control  of  the  school  department,  but  leave  it  to  the  Legislature 
does  not  force  the  Legislature  to  sell  it.  I  take  it  that  the  Legis- 
lature will  be  as  careful  and  as  honest  and  particular  about  taking 
care  of  the  funds  that  is  left  for  the  State  of  South  Dakota,  as  any 
body  of  men  that  can  possibly  be  called  together  or  elected  by  the 
people  and  the  mere  fact  that  we  leave  this  to  our  Legislature  who 
are  to  use  their  wisdom  in  raising  the  funds  to  build  State  buildings, 
does  not  force  us  to  sell  it  at  an  inadequate  price  or  at  inopportune 
time. 

Mr.  Young:  The  gentleman  who  has  just  had  the  floor,  I 
think,  is  laboring  under  a  false  impression  as  to  the  amendment 
desired  by  the  Committee  on  Education  and  School  Lands.  The 


CAPITOL  LANDS  255 


amendment  desired  is  incorporated  in  Section  8,  and  Section  8  does 
not  provide  for  building  up  any  permanent  fund  at  all.  Section 
8  has  reference  simply  to  the  manner  of  selling,  the  Board  for  ex- 
ecuting the  sale,  the  price  and  the  approval  of  the  sale  and  the  ap- 
praisal for  the  sale  and  nothing  at  all  about  the  securing  of  a  fund 
as  a  permanent  fund  which  is  incorporated  in  Section  7  and  further, 
I  think  we  are  not  quite  as  intelligent  upon  this  question  as  a  body 
as  we  ought  to  be  because  this  point  has  not  been  brought  up. 

In  the  previous  section,  Section  12,1  find  that  Uncle  Sam  has 
been  still  more  generous  to  us  in  his  endowments  for  the  public 
building  fund.  He  there  contributes  another  little  lot  of  fifty 
sections,  making  eighty  two  sections  in  all  that  this  State  is  endowed 
with  for  a  public  building  fund. 

This  makes  a  large  fund  and  will  make  therefore  the  piling  up 
of  the  fund  more  rapid,  even  if  very  strict  safeguards  are  thrown 
around  them;  and  as  has  already  been,  intimated,  our  permanent 
capital  site  may  not  be  determined  on  for  the  next  five  years. 
There  will  be  no  necessity  of  any  work  on  a  large  capitol  building, 
a  building  that  ought  to  be  an  ornament  to  our  State,  for  some 
time,  in  any  event.  I  do  not  think  that  we  ought  to  be  in  any  un- 
seemly haste  towards  starting  a  capitol  building  here  that  is  to  do 
for  all  time 

Now,  Mr.  President,  in  reference  to  the  disposition  of  these 
safe-guards,  we  will  have  to  have  some  agents  for  the  State  for  the 
purpose  of  disposing  of  these  lands  for  the  application  of  the  funds. 
It  seems  to  me  the  Board  to  whom  it  is  proposed  to  intrust  these 
lands  in  the  amendment  recommended  by  the  Committee  on  Edu- 
cation and  School  Lands,  is  just  exactly  the  Board  that  is  best 
adapted  for  this  purpose.  They  are  intelligent  in  these  matters 
because  they  will  have  had  experience  disposing  of  other  lands 
and  caring  for  all  such  matters.  If  our  amendment  is  rejected  in 
regard  to  this  matter  it  will  simply  amount,  not  only  to  throwing 
away  all  of  these  safe-guards,  but  to  the  appointment  of  another 
Board,  which  will  be  an  element  of  extra  expense.  As  to  the  point 
of  our  lack  of  authority  on  the  part  of  the  Committee  in  introduc- 
ing this  amendment  at  this  place  you  will  see  by  reference  to  the 
Omnibus  Bill  that  these  endowments,  both  of  them  for  public 
buildings,  are  sandwiched  in  between  the  endowments  for  other 
purposes.  You  will  see  in  the  latter  part  of  Section  17,  that  the 
ntention  was  plainly  the  same  in  regard  to  ajl  lands  on  the  part 


256  SOUTH  DAKOTA  DEBATES  1889 

of  Congress  for  it  says:  "All  the  lands  granted  by  these  sections, 
including  the  several  grants  for  the  several  purposes  shall  be  held 
and  appropriated  and  disposed  of  exclusively  for  the  purposes 
herein  mentioned,  in  such  manner  as  the  Legislature  for  the  respec- 
tive States  may  severally  provide"  as  we  have  thrown  safe- 
guards around  these  and  other  separate  endowments,  and  why 
should  we  separate  this  one  single  endowment  out  and  put  it  in 
condition  where  t  will  likely  be  sacrificed.  It  seems  to  me  a  very 
important  subject  and  is  one  in  which  we  must  make  haste  slowly. 
Mr.  Woods:  It  seems  to  me  that  there  can  be  but  little  ques- 
tion about  what  our  actions  can  be.  There  are  some  very  radical 
amendments  for  instance, — the  report  of  the  Committee  calls  for 
striking  out  a  section  and  the  words  "and,  after  the  year  1900  two 
sucessive  Legislatures  concur  in  a  law  otherwise  directing".  To 
strike  out  these  words  is  not  necessary.  We  have  no  authority 
to  strike  these  words  out  of  the  Constitution  at  all ;  I  think  that 
will  be  apparent  to  any  gentleman  of  the  Convention  upon  close 
and  careful  thought  for  a  few  minutes.  Then,  inserting  of  the  words 
"and  other"  in  the  title  is  as  radical  an  amendment  as  striking  out 
the  words  from  Section  5, — something  we  have  no  authority  to 
do.  I  do  not  remember  whether  the  amendment  covers  all  the 
proposed  amendments  in  Constitution  here  or  not.  The  insertion 
of  the  words  in  the  fourth  subdivision  of  the  report,  "and  all  lands 
donated  for  other  than  educational  and  charitable  purposes"  is 
something  we  have  no  right  to  place  in  the  Constitution  as  an  amend- 
ment. It  is  not  necessary,  in  other  words,  to  carry  out  the  pro- 
vision of  the  Omnibus  Bill  that  these  amendments  be  made,  there- 
fore we  are  without  authority  to  make  them.  It  seems  to  me, 
these  propositions  are  clear  and  plain.  The  argument  that  it 
would  be  desirable  to  place  these  amendments  in  the  Constitution 
is  not  an  argument  which  reaches  the  difficulty.  It  may  be  desir- 
able to  place  them  in  the  Constitution,  it  is  not  necessary  to  dis- 
cuss that;  we  find  ourselves  without  power  to  make  the  proposed 
amendment.  It  is  not  any  answer  to  the  argument  that  it  would 
be  wise  to  place  them  there  within  the  purview  of  the  law  governing 
the  lands  donated  for  capital  purposes  for  the  reason  sometime  in 
the  future  it  would  cost  the  creation  of  some  Board  and  thus  entail 
some  expenses  that  might  be  avoided.  We  find  ourselves  not  in 
the  possession  of  that  power  to  pass  amendments  under  the  Con- 
stitution. This  Constitution  has  been  ratified  and  adopted  by  the 


THE  CAPITOL  LANDS  257 

people  and  we  are  authorized  by  Congress  to  make  certain  amend- 
ments and  changes.  These  are  merely  amendments  and  not 
changes;  now  we  can  enact  only  such  ammendments  under 
the  provisions  of  the  Omnibus  Bill  as  are  necessary  to  carry 
into  effect  the  provisions  of  the  Omnibus  Bill.  I  think  the  gentle- 
men of  the  Convention  will  do  well  to  consider  the  absence  of 
power  in  voting  the  proposed  amendment.  If  we  can  make 
these  amendments  I  submit  the  proposition  that  we  can  throw 
away  the  Constitution  of  1885  and  make  a  new  one.  If  we  have 
sufficient  power  to  make  these  proposed  amendments,  —  not 
changes ;  they  are  amendments — we  have  that  power — we  have  the 
power  to  make  a  new  Constitution  entirely  and  call  it  amendments. 

Mr.  Corson:  I  desire  to  call  the  attention  of  the  Convention 
to  Section  llth  to  show  that  it  was  not  the  intention  of  Congress 
that  these  capital  lands  should  be  included  in  the  educational  lands 
for  the  purposes  of  the  State.  Section  llth  of  the  Omnibus  Bill 
reads,  "That  all  lands  herein  granted  for  educational  purposes 
shall  be  disposed  of  only  at  public  sale  at  a  price  not  less  than  $10 
per  acre,  the  proceeds  to  constitute  a  permanent  school  fund,  the 
interest  of  which  only  shall  be  expended  in  the  support  of  said  school 
It  will  be  seen  in  speaking  of  educational  lands  they  use  the  words 
"that  they  shall  not  be  sold  for  less  than  $10  per  acre",  but  when 
they  come  to  speak  of  the  other  lands  they  use  no  such  terms  and 
that  makes  the  proposition  of  Mr.  Woods  stronger, — that  we  are 
not  allowed  to  make  these  amendments.  But  we  cannot  find  any 
provision  in  the  Omnibus  Bill  that  would  warrant  us.  It  seems  to 
me  that  this  Convention  ought  to  favor  this  second  amendment. 

Mr.  Sherwood:  In  regard  to  our  powers  to  insert  this  amend- 
ment proposed,  it  seems  to  me  this  other  amendment  in  striking 
out  the  words  "unless  after  the  year  1900  two  successive  Legisla- 
tures concur  in  a  law  otherwise  directing"  would  be  unnecessary 
to  conform  with  this  section  of  the  Omnibus  Bill,  that"all\ands 
shall  be  disposed  of  only  at  public  sale  -and  at  a  price  not  less  than 
$10  per  acre," — I  do  not  hardly  see  how  that  amendment  can  stand 
and  yet  the  Legislature  have  power  after  1900. 

Mr.  Humphrey:  I  wish  to  call  the  attention  of  the  Convention 
to  the  fact  that  by  inserting  the  amendment  proposed  in  the  8th 
Section  does  not  throw  around  these  lands  the  restrictions  con- 
tained in  many  other  sections  relating  to  the  permanent  fund.  It 
is  only  a  restriction  in  regard  to  the  rights-  of  appraisal  and  ap- 


258  SOUTH  DAKOTA  DEBATES,  1889. 

proval  pertaining  to  the  same  only.  We  find  that  the  Constitution 
has  its  own  safeguards  and  protects  all  the  lands  that  the  State  has 
cognizance  of  and  when  it  is  claimed  that  the  Legislature  will  take 
necessary  care  of  these  lands  we  have  only  to  judge  the  future  by 
the  past  and  if  the  Convention  which  framed  this  Constitution  has 
that  same  confidence  in  the  Legislature,  why  did  they  place  th  se  re- 
strictions upon  these  lands?  The  restrictions  should  be  placed  in 
the  Constitution.  This  having  been  injected  as  I  have  said  by  this 
bill  it  will  be  a  portion  of  our  duty  to  guard  and  protect  it  the  same 
as  other  public  lands.  In  regard  to  the  amendment  of  the  5th 
Section,  to  which  your  attention  has  been  called  by  Mr.  Sherwrood, 
under  the  Constitution  you  would  be  liable  and  would  violate  the 
provisions  of  the  Omnibus  Bill.  The  Omnibus  Bill  states  that 
these  lands  should  never  be  sold  for  less  than  $10  per  acre;  would 
you  empower  the  Legislature  after  a  certain  year  to  sell  them  for 
less?  In  regard  to  the  amendment  to  the  title,  I  would  say  this, 
that  we  depended  upon  amendment  Number  Four.  If  that  were 
enacted,  that  necessarily  amended  the  title  if  not  concurred  in 
by  the  Convention  that  would  be  striken  out. 

Mr.  Corson:  I  move  to  strike  out  of  the  report  amendment 
number  four  and  substitute  for  Section  8  as  reported,  the  original 
Section  8  of  the  Sioux  Falls  Constitution. 

Mr.  Dickinson:  It  seems  to  me,  the  question  turns  on  this 
point:  In  tne  first  place  whether  the  Committee  on  Education 
and  School  Lands  has  not  the  right  to  extend  its  jurisdiction  so 
that  it  will  include  the  capital  lands  and  whether  in  an  atricle  of 
the  Constitution  providing  for  Education  and  School  Lands  we 
can  arrange  for  capital  improvements.  I  have  been  surprised  that 
the  Chairman  of  the  Committee  makes  this  report.  He  has  been 
one  of  the  greatest  sticklers  for  preserving  intact  the  Sioux  Falls 
Constitution.  In  this  matter  he  presents  a  most  decided  change  of 
front  that  has  been  noticed  yet  on  the  floor  of  this  Convention 

Mr.  Humphrey:  I  would  say  that  I  am  aware  that  I  am  open 
to  that  charge.  I  had  myself  advised  that  this  matter  be  turned 
over  to  the  Schedule  Committee  but  many  thought  that  it  would 
be  the  proper  place  for  it  to  be  brought  before  this  Convention. 

Mr.  Woods:     I  propose  as  an  amendment  to  the  amendment, 


THE  CAPITOL  LANDS  259 

that  the  words  "and  others"  in  the  first  sub-division  of  the  report 
be  stricken  out  of  the  report. 

Which  motion  received  a  second. 

Mr.  Young:  Now  we  are  by  our  Constitution  to  throw  safe- 
guards and  a  very  many  of  them  around  all  public  lands  we  had 
then  or  that  the  State  had  any  expectation  of.  These  lands  were 
given  to  the  State  by  this  Enabling  Act,  and  it  is  only  natural  to 
suppose  that  had  the  Constitutional  Convention  of  1885  been  aware 
of  the  generosity  of  the  general  government  they  would  have  put 
in  the  provision  that  the  Committee  proposed. 

The  President:  The  question  before  the  Convention  is  upon 
the  adoption  of  the  report  of  the  Committee  on  Education  and 
School  Lands  to  which  Mr.  Corson  proposed  the  following  amend- 
ment, to  strike  out  of  the  report,  amendment  number  four,  and  to 
substitute  Section  8,  as  reported  by  the  Sioux  Falls  Constitution 
in  lieu  of  Section  8,  as  reported  by  the  Committee.  Mr.  Woods 
proposes  an  amendment  to  the  amendment  by  striking  out  the 
words  "and  other."  As  many  as  are  in  favor  of  the  amendment 
proposed  by  the  gentlemen  from  Pennington  say  aye ;  the  ayes 
have  it.  The  motion  is  now  upon  the  amendment  as  amended. 
Mr.  Sterling  moves  that  the  report  of  the  Committee  on  Education 
and  School  Lands  be  amended  so  that  Section  9  of  Article  VIII 
shall  read  as  follows:  "The  lands  mentioned  in  this  Article  may, 
under  such  regulations  as  the  Legislature  may  prescribe,  be  leased 
for  periods  of  not  more  than  five  years  in  quantities  not  exceeding 
one  sectkm  to  any  person  or  company.  All  rents  shall  be  payable 
annually  in  advance,  nor  shall  any  lease  be  vaild  until  it  receives 
the  approval  of  the  Governor." 

Mr.  Sterling:     I  move  the  adoption  of  the  amendment. 

Motion  received  a  second. 

Mr.  Wescott:     I  move  that  the  motion  be  laid  upon  the  table. 

Which  motion  received  a  second  and  prevailed. 

The  President ;  The  question  is  upon  the  report  of  the  Com- 
mittee as  amended. 

Mr.  Woods:  Before  the  motion  is  put,  I  desire  to  modify 
what  I  have  said, — what  I  have  heretofore  said,  concerning  the 
proposed  amendment  of  Section  5  of  Article  VIII.  I  am  inclined 
to  think  what  I  said  before  was  said  without  due  consideration. 


260  SOUTH  DAKOTA  DEBATES  1889 

The  question  of  the  adoption  of  the  report  of  the  Committee, 
upon  reaching  a  vote,  was  declared  by  the  President  to  be  duly 
adopted. 

The  President:  Under  the  Special  Order  the  consideration 
of  the  report  of  the  Committee  on  Name  and  Boundaries  will  be 
the  next  order  of  business. 

The  Clerk  reads  the  report  as  follows ; 

(Here  insert  it.) 

The  President:  The  Chairman  of  the  Committee  on  Name 
and  Boundaries  moves  the  adoption  of  the  report. 

The  Convention,  by  a  unanimous  vote,  adopted  the  report 
of  the  Committee  on  Name  and  Boundaries. 

The  President:  The  second  report  made  by  this  Committee 
on  Seat  of  Government,  is  now  before  the  Convention. 

Clerk  reads  the  report  as  heretofore  made: 

(Here  insert  it.) 

The  Convention,  by  unanimous  vote  adopted  the  report  of  the 
Committee  on  Name  and  Boundaries,  the  second  sub-division, 
Seat  of  Government. 

The  President:  That  finishes  the  Special  Order.  What  is 
the  further  pleasure  of  the  Convention  ? 

Mr.  Clough:  At  the  request  of  the  Chief  Clerk,  I  introduce 
this  resolution: 

WHERAS,  in  the  records  of  this  Convention  the  words  "Chief 
Clerk"  and  "Secretary"  are  used  interchangeably, 

RESOLVED,  that  when  so  used,  that  they  'shall  be  deemed  to 
pertain  to  the  same  person  and  office, — that  of  Chief  Clerk. 

The  President :  The  resolution  will  be  referred  to  the  Committee 
on  Rules. 

Mr.  Spooner:  In  order  to  facilitate  business  it  has  been  sug- 
gested that  we  have  a  session  tomorrow  morning.  I  move  that  the 
rules  be  suspended  and  that  when  we  adjourn  it  will  be  until  9 
o'clock  tomorrow  morning. 

Mr.  Davies:  Have  we  not  already  said  we  would  have  a 
session  this  evening? 

The  President:  It  is  moved  that  the  rules  be  suspended  and 
when  we  adjourn,  it  be  until  tomorrow  morning  at  9  o'clock. 

This  motion  prevailed. 

Mr.  Clough:  I  move  that  we  instruct  the  Committee  on 
Schedule  to  bring  us  a  report. 


SCHEDULE  AND  ORDINANCE  261 

Mr.  Jolley:  I  move  an  amendment, — that  the  gentleman 
from  Codington  have  a  club  and  be  instructed  to  make  the  Commit- 
tee bring  it. 

Mr.  Humphrey:  This  is  near  the  close  of  our  session;  we 
are  anxious  to  expedite  the  work, — the  work  that  is  left, — the 
principle  part  of  which  pertains  to  the  Committee  on  Schedule. 
I  renew  the  motion  of  the  gentleman  from  Codington  that  they  be 
instructed  to  report  tomorrow  morning  at  9  o'clock. 

This  motion  received  a  second  and  on  a  division  of  the  House 
prevailed  by  a  vote  of  31  ayes  and  26  noes. 

Mr.  Humphrey:  I  move  you  the  report  of  the  Commmttee 
on  Schedule  be  made  a  special  order  tomorrow  morning  at  9  o'clock. 

Mr.  Jolley:  That  is  pretty  good, — making  a  special  order 
of  something  you  are  not  in  possession  of. 

Mr.  Willis:  I  second  the  motion  that  we  make  it  a  special 
order. 

Mr.  Corson:  There  are  matters  in  that  report  that  cannot 
be  inserted  until  this  Committee  from  Bismarck  reports. 

Mr.  Hole:  There  has  been  a  special  call  for  the  report  of  the 
Committee  on  Schedule  and  Ordinance.  I  will  explain  that  the 
Committee  has  been  at  work  pretty  nearly  night  and  day.  From 
the  fact  that  they  have  to  take  up  the  work  after  these  Committees 
have  reported.  We  do  not  want  to  report,  and  you  do  not  want 
any  report  that  is  not  right.  We  expect  to  work  all  night  at  that 
and  get  it  here  tomorrow  morning.  I  think  it  is  unfair  and  un- 
courteous  to  pass  this  kind  of  a  resolution  at  this  time.  You 
know  naturally  as  well  as  you  want  to  know,  that  this  Committee 
want  to  report  just  as  quick  as  they  can.  We  are  going  to  report 
tomorrow  morning  if  possible,  and  if  it  is  not  possible  it  will  not 
be  here.  You  do  not  want  a  faulty  report.  This  question  referred 
to  the  Judiciary  Committee  two  weeks  ago  that  has  just  come  in 
from  the  Committee.  We  had  to  work  after  all  these  Committees 
came  in.  I  think  you  will  find  that  you  have  been  just  a  little  bit 
hasty  in  this  matter.  This  Committee  wants  to  report  and  get 
away  just  as  badly  as  any  gcntkman  in  this  Convention.  This 
Committee  has  worked  more  hours  than  any  other  Committee  in 
this  Convention.  It  strikes  me  just  a  little  bit  previous  to  make 
this  kind  of  a  motion. 

The  President:  The  motion  before  this  Convention  is  that 
the  report  of  the  Schedule  Commit  tin-  be  made  a  special  order 


262  SOUTH  DAKOTA  DEBATES  1889 

for  tomorrow  morning  at  nine  o'clock.  I  will  say  that  the  Com- 
mittee on  Schedule  have  two  reports  in  and  the  Convention  has  the 
right  to  make  them  the  special  order  for  tomorrow  morning  at 
9  o'clock. 

The  motion  prevailed.  f-  > 

Mr.  Fellows:  I  move  the  reconsideration  of  the  motion  or- 
dering the  Committee  to  report  tomorrow  morning  at  9  o'clock. 

This  motion  prevailed;  the  motion  was  reconsidered. 

The  President:  The  question  before  the  Convention  is,  shall 
the  Committee  on  Schedule  and  Ordinance  be  instructed  to  report 
tomorrow  morning  at  9  o'clock. 

Mr.  Clough:  After  talking  w7ith  the  Committee  I  think  we 
understand  it  a  little  better.  I  will  make  another  motion,  that  the 
Committee  on  Schedule  be  requested  to  report  next  Thursday 
afternoon.  I  make  that  as  an  amendment  that  they  be  requested 
to  report  next  Thursday  afternoon.  These  gentlemen  claim  that 
they  cannot  report  until  the  Committee  get  back  frcm  Bismarck. 
I  would  like  to  have  these  Bismarck  men  get  home  next  Thursday. 

Mr.  Hole:  I  would  say  that  we  want  to  report  before  that 
time.  We  expect  to  report  tomorrow  morning ;  we  expect  to  make 
a  partial  report. 

The  President:  The  question  is  upon  the  amendment  of  the 
gentleman  from  Codington,  that  it  be  made  a  special  order  for  next 
Thursday. 

Mr   Willis:     I  move  to  lay  the  amendment  on  the  table. 

Which  motion  received  a  second  and  duly  prevailed. 

The  President:  The  question  before  the  Convention  now 
is,  shall  the  Committee  on  Schedule  and  Ordinance  be  instructed 
to  report  tomorrow  morning  at  9  o'clock.  jt^ 

Mr.  Humphrey:  I  wish  to  ask  a  question.  I  am  under  the 
impression  that  our  duty  is  simply  to  incorporate  the  agreement 
reached  by  the  gentlemen  of  the  Commission  and  if  so,  w^hat  have 
the  Schedule  Committee  got  to  do  with  it? 

Mr.  Jolley:     It  is  by  Ordinance. 

Mr.  Hartley:  I  understand  we  have  nothing  to  do  with  the 
report  from  Bismarck;  it  is  for  this  Convention  to  put  it  through. 
It  has  never  been  referred  to  our  Committee.  We  can  report 
tomorrow  morning. 

The  President :  The  question  is ,  shall  the  Committee  on  Sched- 
ule be  requested  to  report  tomorrow  morning. 


ADJOURNMENT  263 


The  motion  reaching  a  vote,  the  President  declared  the  motion 
lost. 

On  motion  the  Committee  adjourned  until  tomorrow  morning 
at  9  o'clock,  July  25th,  1889. 


TWENTY-THIRD  DAY. 

Sioux  Falls,  S.  Dak.,  July  26th,  1889. 
Nine  o'clock  A.  M. 

Pursuant  to  adjournment,  Convention  re-assembled  with 
President  Edgerton  in  the  Chair. 

Prayer  was  offered  by  Rev.  Mr.  Lee  as  follows: 

Most  holy,  All  Wise  and  ever  to  be  adored  God,  Ruler  of  the 
Armies  of  Heaven,  and  the  dwellers  upon  earth,  before  whom  angels 
and  arch-angels  bow  in  reverence  and  godly  fear;  we  thank  Thee 
that  Thou  hast  made  us  but  little  lower  than  the  angels,  and  en- 
dowed us  with  intellectual  faculties  whereby  we  can  take  a  retro- 
spective view  of  the  past,  consider  the  present,  and  by  a  lively  faith 
anticipate  the  joys  to  come.  Great  God,  as  we  have  met  to  consider 
the  greatest  question  that  may  come  before  this  Convention  we  ask 
for  strength  mentally,  physically,  and  morally  that  we  may  do 
right  by  our  constituents  and  the  inhabitants  of  South  Dakota  with- 
out fear  or  favor.  Oh  God,  bless  all  our  loved  ones  at  home,  ward 
off  disease  and  accident,  let  nothing  thwart  our  pathway  that  shall 
lead  us  astray,  and  finally  save  us  all  in  Heaven  where  we  may 
enjoy  each  other's  society,  refer  to  the  acts  of  this  life  well  done 
before,  and  after  we  are  a  million  years  old.  We  ask  all  in  the  name 
of  Christ,  our  Mediator  and  Redeemer, 

AMEN. 

The  Clerk  reads  the  Journal  of  the  preceding  day. 

The  President:  I  do  not  know  that  I  understand  fully  the 
order  made  yesterday  by  the  Convention  as  to  the  purpose  of  this 
morning's  session;  I  shall  decide  unless  objection  is  made  that  this 
morning's  session  is  for  the  purpose  just  as  named  in  the  motion  for 
the  session  this  morning,  and  that  the  afternoon's  session  will  take 
place  as  usual  with  the  regular  order  of  business;  if  I  am  correct 
in  that,  the  first  business  for  the  consideration  of  the  Convention 
is  the  report  of  the  Committee  on  Schedule. 

Mr.  Van  Buskirk:     I  asked  leave  yesterday  to  sulmit  a  report 


266  SOUTH  DAKOTA  DEBATES  1889 

of  the  minority  of  the  Judiciary  Committee  upon  the  question  of 
the  power  of  this  Convention  to  prepare  for  the  election  of  a  Clerk 
of  the  Circuit  Court.  While  I  would  have  been  glad  to  have  deferred 
it  a  few  minutes  longer,  as  some  members  of  ihe  Committee  who  are 
not  present  desire  to  sign  it,  I  will  say  I  do  not  desire  to  discuss  this 
question  now  until  the  Schedule  Committee  report  as  they  may 
agree ;  otherwise  I  wish  to  be  heard  on  this  report. 

The  Clerk  reads  as  follows: 
MR.  PRESIDENT:  — 

The  undersigned  members  of  the  Judiciary  Committee  would 
respectfully  represent  that  we  have  carefully  examined  the  Sioux 
Falls  Constitution  and  the  Omnibus  Bill,  and  we  are  unable  to  find 
any  provision  or  authority  in  either  by  which  this  Convention  can 
provide  by  ordinance  or  otherwise  for  the  election  of  any  other  than 
State  officers  at  the  election  held  for  the  adoption  of  the  Consti- 
tution. That  neither  the  Clerk  of  the  Court,  Register  of  Deeds,  or 
any  other  of  the  County  officers  are  by  the  said  Constitution  or  the 
Omnibus  Bill,  considered  as  State  officers,  nor  have  thev  been  treated 
as  state  officers  in  the  administration  of  the  affairs  of  government, 
but  especially  does  the  said  Constitution  treat  and  consider  these 
officers  as  county  officers  and  provides  for  their  election  at  the  next 
general  election  after  the  admission  of  the  State  intothe  Union.  We 
therefore  beg  leave  to  dissent  from  the  opinion  of  the  Committee 
heretofore  submitted. 

S.  B.  VANBUSKIRK, 

GEO.  C.  COPPER, 
H.  F.  FELLOWS, 
THOS.  STERLING, 
SAMUEL  A.  RAMSEY, 
H.  W.  EDDY, 
A.  J.  BERDAHL. 

The  President:  Are  there  any  further  reports  from  Standing 
Committees? 

Mr.  Stroupe:  I  have  a  report  from  the  Committee  on  Name 
and  Boundaries  and  Seat  of  Government  to  which  was  referred  the 
resolution  of  Mr.  Goddard,  of  McCook  County,  relative  to  the  Sev- 
enth Standard  Parallel. 

The  Clerk  reads  the  report  referred  to  as  follows: 

Sioux  Falls,  July  26,    1889. 

Your  Committee  on  Name,  Bounadries  and  Seat  of  Government, 
to  whom  was  referred  the  resolution  presented  by  Mr.  Goddard, 
of  McCook  County,  relative  to  the  Seventh  Standard  Parallel,  have 
considered  the  same,  and  beg  leave  to  report,  that  in  the  opinion  of 
your  Committee  the  Constitutional  Conventions  of  North  and  South 


PUBLICATION  OF  CONSTITUTION  267 

Dakota  are  not  authorized  by  the  Omnibus  Bill  to  determine  what 
constitutes    the    true    Seventh    Standard    Parallel.     We    therefore 
respectfully  recommend  that  no  action  be  taken  on  the  resulution. 
Respectfully  submitted, 

M.  P.  STROUPE,  Chmn. 
S.  A.  WHEELER, 
JONATHAN  KIMBALL, 
W.  T.  WILLIAMS, 
E.  G.   EGERTON, 
WM.  VAN  EPS. 

The  President:     What  will  you  do  with  the  report? 

Mr.  Stroupe:     I  move  that  we  adopt  the  report. 

The  motion  prevailed  and  the  report  was  declared  adopted. 

The  President:  A  matter  went  over  yesterday  and  has  not 
been  adopted  yet ;  that  was  the  report  of  the  Committee  on  Printing 
with  reference  to  the  publication  of  200,000  supplements  containing 
the  Constitution.  Is  the  Convention  ready  for  the  consideration 
of  that  report? 

Mr.  Sherwood:  I  move  an  amendment  to  the  report,  that 
in  the  place  of  the  amount  of  10,000,  shall  be  printed  in  German  and 
10,000  in  the  Scandinavian  language,  it  shall  read  tw:enty  thousand 
be  printed  in  each. 

Mr.  Zitka:  I  move  as  an  amendment  that  ten  thousand  copies 
be  printed  in  the  Bohemian  language. 

The  President:  The  gentleman  from  Clark  moves  an  amend- 
ment to  strike  out  "10"  where  it  occurs  and  insert  the  word  "twenty" 
with  reference  to  the  publication  of  this  in  the  German  and  Scan- 
dinavian languages ;  and  the  gentleman  from  Bon  Hcmme  proposes 
an  amendment  to  the  amendment  by  adding  thereto  ten  thousand 
in  the  Bohemian  language ;  is  the  Convention  ready  for  the  question  ? 

Mr.  Sterling:  I  wish  to  say  a  word  on  this  proposition  in 
reference  to  what  the  Committee  had  under  consideration;  it  was 
proposed  in  Committee  that  the  distribution  of  these  copies  of  the 
Constitution  be  as  newspaper  supplements;  we  estimated  the  num- 
ber of  newspapers  that  would  probable  convey  these  copies  to  the 
people  speaking  those  languages,  the  Scandinavian  and  the  German 
and  allowing  the  largest  possible  estimate  we  could  figure  it  out  that 
there  would  be  more  than  ten  thousand  conveyed  in  that  way  to 
the  Scandinavian  and  Germans,  and  that  that  was  the  reason  for 
making  the  amount  ten  thousand  in  each  case.  But  if  there  are 
others  who  are  better  informed  as  to  the  number  who  will  be  rea<  bed 


268  SOUTH  DAKOTA  DEBATES  1889 

in  this  way  through  the  newspaper  supplements/ — the  people  speak- 
ing those  different  languages,  I  suppose  the  Committee  would  not 
object;  I  wished  simply  to  state  that  for  the  consideration  of  the 
Convention.' 

The  President:  The  question  before  the  Convention  is  upon 
the  adoption  of  the  amendment  to  the  amendment,  that  ten  thous- 
and copies  be  printed  in  the  Bohemian  language. 

The  motion  prevailed  and  the  amendment  was  declared  so 
amended. 

The  President:  The  motion  now  recurs  upon  the  amendment 
as  amended. 

The  motion  prevailed  and  wras  so  declared  by  the  President. 

The  President:  The  motion  now  recurs  on  the  report  as 
amended;  as  many  as  are  of  the  opinion  that  the  report  as 
amended  be  adopted, — say  aye. 

The  President:  The  ayes  have  it;  the  report  as  amended  is 
adopted. 

Mr.  Wood:  I  understood  the  chair  to  announce  that  this 
meeting  was  called  for  the  purpose  of  considering  the  report  of  the 
Schedule  Committee;  I  do  not  so  understand  the  porceedings  of 
yesterday;  in  order  to  bring  the  matter  before  the  Convention, 
I  move  you,  Mr.  President,  that  the  report  of  the  Committee  on 
Judiciary  relative  to  the  right  of  the  Convention  to  provide  for 
Clerks  of  the  Circuit  Court,  be  now  considered. 

The  President :  It  is  moved  by  the  gentleman  from  Pennington 
that  the  Convention  proceed  to  the  consideration  of  the  majority 
and  minority  report  upon  the  powers  of  the  Convention  to  provide 
for  the  Election  of  Clerks  of  court.  Are  you  ready  for  the  question  ? 

Mr.  Van  Buskirk:  There  are  some  of  the  members  of  that 
Committee  who  are  engaged  this  morning  on  other  matters  in 
committee ;  I  think  they  would  desire  undoubtedly  to  be  present ; 
I  would  therefore  move  as  amendment  that  it  be  postponed  until 
afternoon,  so  they  might  be  heard  on  this  matter. 

The  President:  The  way  to  reach  that  is  to  vote  it  down; 
as  many  as  are  of  the  opinion  that  the  motion  prevail  say  aye.  I 
am  unable  to  determine.  As  many  as  are  of  the  opinion  that  we 
now  proceed  to  the  consideration  of  the  majority  and  minority 
report  of  the  committee  relative  to  the  Circuit  Court  Clerks  will 
rise  and  stand  until  counted. 


THE  AUSTRALIAN  SYSTEM  269 

The  President:  The  motion  is  lost.  I  will  proceed  then  under 
the  order  of  the  Convention. 

Presentations  of  Communications  and  Petitions. 

Mr.  Spooner:  I  have  a  petition  to  put  m  from  the  legal  voters 
of  Kingsbury  County  with  relation  to  a  modified  Australian  system 
of  voting.  (Sent  to  desk  of  Clerk.) 

Unfinished  business  of  preceding  day? 

Reports  from  Standing  Committees?  I  will  ask  the  Clerk  to 
read  the  list  of  Standing  Committees  to  see  how  many  Committees 
have  still  reports  that  have  not  been  presented  to  the  Convention ; 
and  if  the  Chairman  will  announce  as  the  list  is  read  whether  they 
have  any  further  reports  to  make  during  the  Convention. 

The  President:  Under  the  special  order,  are  the  two  reports 
or  partial  reports  from  the  Committee  on  Schedule;  first,  the  report 
upon  Minority  Representation. 

The  Clerk  reads  the  report  as  follows: 

Sioux  Falls,  S.  D.,  July  24,  1889. 
MR.  PRESIDENT:  — 

Your  Committee  on  Schedule  and  Ordinance  to  whom  was 
referred  Article  XXV  of  the  Constitution,  entitled,  "Minority 
Representation"  having  had  the  same  under  consideration,  beg 
leave  to  report  that  po  changes  or  amendments  are  necessary  to 
comply  with  the  provisions  of  the  Omnibus  Enabling  Act. 

And  we  herewith  report  Article  XXV  as  found  in  the  Consti- 
tution, and  respectfully  recommend  the  resubmission  of  the  same. 

SCH  EDULE  AND  ORDINANCE  COMMITTEE, 

By  L.  H.  HOLE,  Chairman. 

The  report  by  vote  of  the  Convention,  was  adopted. 
The  President:     The  next  report  for  our  consideration  is  the 
report  on  Prohibition. 

The  Clerk  reads  the  report  as  follows: 

Sioux  Falls,  July  24,  1889 
MR.  PRESIDENT:  — 

Your  Committee  on  Schedule  and  Ordinance,  to  whom  was 
referred  Article-  XXIV  of  the  Constitution,  entitled,  "Prohibition," 
having  had  the  same  under  consideration,  beg  leave  to  report  that 
no  changes  or  amendments  arc  necessary  to  comply  with  the  pro- 
visions  of  the  Omnibus  Enabling  Act. 

And  we  herewith  report   ArtiK  e   XXIV  as  found 'in  the  Con- 
stitution and  respect  fully  recommend  the  re-submission  of  the  same. 
SCIIK oru-:  AND  OKiHXAxrK  COMMITTEE 
Rv   L.   11.   I  IOI.K.  Chairman. 


270  SOUTH  DAKOTA  DEBATES  1889 

The  President:     The  Chairman  of  the  Committee  moves  the 
adoption  of  the  report ;  is  the  Convention  ready  for  the  question? 
The  report  was  declared  adopted  by  the  President. 
The  Clerk  under  direction  of  the  President,  reads  the  report  of 
the  Committee  on  Revenue  and  Finance,  as  follows: 

Sioux  Falls,  Dakota    July  24,   1889. 
MR.  PRESIDENT:  — 

Your  Committee  on  Revenue  and  Finance,  to  whom  was  re- 
ferred Article  XI  entitled  "Revenue  and  Finance",  have  considered 
the  same  and  have  compared  said  Article  XI  with  the  Sioux  Falls 
Constitution  and  the  Act  of  Congress  known  as  the  "Omnibus 
Bill",  and  have  instructed  me  to  report  the  following  as  Article 
XI  of  the  Constitution  and  that  the  same  is  in  accordance  with  the 
Sioux  Falls  Constitution  and  the  changes  thereto  authorized  by  the 
Omnibus  Bill. 

W.H.  GODDARD,  Chmn. 
C.  A.  HOULTON, 
JOSEPH  ZITKA, 
C.  J.  B.  HARRIS, 

A.   O.   RlNGSRUD, 

L.  T.  BOUCHER, 
WM.  VAX  EPS, 

Committee. 

The  President:  The  Chairman  of  the  Committee  moves  the 
adoption  of  the  report;  are  you  ready  for  the  question? 

The  report  was,  by  the  President,  declared  adopted. 

The  President:  The  resolution  of  the  Judiciary  Committee 
concerning  the  Circuit  Clerks,  is  next  under  the  special  order;  what 
is  the  pleasure  of  the  Convention  ? 

I  would  state  for  the  information  of  the  members  of  the  Con- 
vention who  were  not  present  a  short  time  ago,  it  was  moved  that 
we  proceed  to  the  consideration  of  the  majority  and  minority 
report  of  the  Judiciary  Committee  on  election  of  Clerks  of  Court ; 
the  Convention  refused  then  to  consider  the  question;  it  is  now 
reached  under  the  special  order, 

Mr.  Jolley:  Was  the  report  made  a  special  order?  I  find  it 
here  upon  the  desk,  that  is  all  I  know;  the  motion  was  made  to 
refer  back  to  that  order  of  business  yesterday  and  the  Convention 
refused;  do  I  understand  that  it  was  made  a  special  order  this 
morning? 

The  President:  I  am  informed  that  it  was  not  made  a  special 
order. 

The  President:     The  next  I     have  of  the  reports  not  acted 


CLERKS  OF  CIRCUIT  COURTS  271 

upon  is  the  report  of  the  Committee  on  Legislative  Department. 

The  Clerk  reads  the  report  as  follows:      (Here  insert  it). 

The  President:  The  Chairman  of  the  Committee  moves  the  ad- 
option of  the  report ;  what  is  your  pleasure  ? 

The  report  was,  by  vote  of  the  Convention,  adopted. 

The  President:  What  is  the  further  pleasure  of  the  Conven- 
tion? We  have  adopted  all  the  reports  I  believe  except  the  report 
of  the  Committee  on  Judiciary,  in  which  there  is  a  majority  and 
minority  report  with  reference  to  the  elections  of  Clerks  of  Circuit 
Court  and  the  report  of  the  Committee  on  Schedule  and  Ordinance, 
which  the  Chairman  announces  that  they  are  not  ready  this  moment 
to  make. 

Mr.  Dickinson:  I  move  we  take  up  the  proceedings  of  the 
report  of  the  Judiciary  Committee.  Motion  seconded. 

Mr.  Jolley :  I  object ;  we  cannot  refer  back  without  unanimous 
consent. 

Mr.  Wood:     This  comes  up  in  regular  order. 

Mr.  Jo  ley:     The  order  is  passed. 

Mr.  Wood:  It  was  moved  to  take  it  up  out  of  its  order;  the 
report  comes  in  in  its  regular  order. 

Mr.  Jolley:     That  order  is  passed,  Mr.  President. 

The  President:  The  order  Consideration  of  Reports  of  Stand- 
ing Committees  has  passed ;  I  called  it  and  there  was  no  response. 
Then  I  proceeded  to  the  special  order  which  we  have  usually  taken 
up  after  the  regular  order  has  been  passed.  I  think  the  objection 
is  well  taken ;  but  by  two-thirds  vote  it  may  be  taken  up  at  tl  is 
time,  that  the  rules  may  be  suspended  and  the  order  taken  up  and 
unless  otherwise  directed  by  the  Convention  I  shall  decide  that  in 
order  to  carry  this,  it  is  necessary  that  two-thirds  vote  be  in  the 
affirma  ive.  As  many  as  are  of  the  opinion  that  we  proceed  tJ 
consider  the  majority  report  of  the  Committee  on  Election  of  Clerks 
of  Court  say  aye.  Call  a  divisio  •>.. 

A  standing  vote  was  accordingly  taken  and  resulted  as  follows: 

The  President:  The  ayes  are  26,  the  noes  are  23  ;  the  vote  does 
not  prevail ;  the  rules  are  not  suspended. 

Mr.  Hole:  By  some  oversight  I  think  the  substitute  report 
of  Article  XXVII  has  not  been  adopted  by  the  Convention,  in  re- 
gard to  the  compact  with  the  United  States.  I  suppose  it  will  be 
necessary  to  return  to  that  order  of  bus'nes  .  I  call  it  up. 

The  President:     Chairman  of  the  Committee  on  Schedule  and 


272  SOUTH  DAKOTA  DEBATES  1889 

Ordinance  moves  the  rtles  be  suspended  in  order  that  the  Convent'on 
may  consider  the  report  made  by  the  Committee  on  Schedule  and 
Ordinance,  with  reference  to  a  compact  with  the  United  States ;  are 
you  ready  for  the  question? 

The  motion  on  reaching  a  vote,  the  President  declared  "The 
ayes  have  it  ard  the  rule  h  suspended". 

The  Clerk  read  the  report. 

Mr.  Lee:     I  move  the  adoption  of  the  report. 

Which  motion  prevailed  and  the  motion  was  declared  adopted 
by  the  President. 

Mr.  President:  I  will  state  for  the  information  of  the  members 
who  were  absent  that  my  understanding  of  this  morning's  session 
was  that  it  was  a  special  session  to  dispose  of  the  business  brought 
before  it  that  the  afternoon  session,  commencing  at  two  o'clock  was 
the  regular  session  of  the  day.  I  stated  that  that  was  the  mation  as  '  o 
the  order  of  the  Convention.  If  I  am  correct  we  proceed  at  our 
regular  routine  work  at  two  o'clock  this  afternoon.  What  is  the 
further  pleasure  of  the  Convention? 

Mr.  Dickinson:     I  move  we  do  adjourn 

Mr.  Hole:  The  Committee  on  Schedule  is  ready  to  report. 
If  it  is  in  orde  •  now  we  will  hand  in  our  report.  I  was  in  doubt 
as  to  whether  it  is  in  order. 

Mr.  President:  My  own  interpretat'on  was  that  we  met  or 
that  specific  purpose,  that  the  report  of  the  Committee  on  Schedule 
might  be  made  this  morning. 

Mr.  Hole:     The  Committee  is  ready  to  report. 

The  President:  Is  objection  made  to  receiving  the  report  of 
the  Committee  on  Schedule  and  Ordinance?  It  will  be  received 
if  no  objection  is  made. 

Mr.  Van  Buskirk:  I  understood  that  there  was  a  mot' on  before 
the  house  to  adjourn.  I  was  desirious  that  this  report  be  on  the 
table  of  all  the  members,  but  I  think  perhaps  we  will  get  along  about 
as  fast  if  we  look  these  over  carefully.  I  would  move  that  we  ad- 
journ until  two  o'clock  this  afternoon,  at  the  regu'ar  time. 

Received  a  second. 

Mr.  Hole:  Bear  with  me  a  moment.  The  printed  report  as 
on  the  desks  has  been  amended  by  the  session  this  morning  and  it 
might  be  well  to  read  that  over  and  call  attention  to  those  amend- 
ments and  mark  them  and  to  that  end  I  .suggest  that  it  be  read 


SCHEDULE  AND  ORDINANCE  273 

first  and  the  amendments  marked  and  you  can  study  it  at  your 
leisure. 

Mr  Van  Buskirk  With  the  consent  of  the  second  and  with  the 
privilege  of  renewing  the  motion  to  adjourn,  I  have  no  objection 
to  that. 

The  Clerk  here  reads  the  report  of  the  Committee  on  Schedule 
and  Ordinance,  as  amended,  according  to  the  report  of  the  Chairman 
of  the  Committee. 

Mr.  Van  Buskirk:     I  renew  the  motion  to  adjourn. 

Which  motion  prevailed. 

The  Convention  stood  adjourned  until  two  o'clock  this  after- 
noon,—2  P.  M.,  July  26th  1889. 

Two  o'clock  P.  M.  Convention  reassembled  pursuant  to 
adjournment. 

The  President:  The  Convention  has  under  Consideration  the 
report  of  the  Committee  on  Schedule  and  Ordinance. 

Mr.  Hole:  Do  we  undertsand  that  this  is  the  first  order  of 
business?  Is  this  an  adjourned  meeting  or  the  regular  meeting? 

The  President :  I  understood  this  morning  that  the  Convention 
adjourned  last  night  for  a  specific  purpose  to  this  morning,  but  upon 
further  examination  of  the  Journal  I  am  persuaded  that  it  was 
adjournment  till  nine  o'clock  this  morning.  I  think  the  session 
commenced  this  morning  at  nine  o'clock  of  this  day  and  that  this 
is  part  of  the  morning  session. 

Mr.  Hole:  Then  if  I  understand  the  report  of  the  Schedule 
Committee  is  properly  before  the  Convention.  I  would  move  its 
adoption  ami  wish  to  add  to  that  motion  a  few  remarks  just  now. 
We  have  entered  the  danger  field  and  it  is  with  much  timidity  that 
I  stop  upon  this  thin  ice  for  I  know  the  water  is  deep.  But  in  sub- 
mitting this  report  1  refer  with  no  little  pride  to  the  work  of  your 
Committee.  On  the  superstructure  that  is  to  bear  us  safely  ovef 
the-  period  of  change  from  a  grand  Territory  to  a  grand  State. 
Whether  or  not  we  have-  well  builded,  time  alone  can  tell;  we  may 
have  left  out  a  brace  here  or  failed  to  tighten  a  burr  there  which 
may  result  in  weakening  our  structure.  But  whatever  misfits 

or  mistakes  the  future  may  develop  \\i\\  be  found  to  be  the  out- 
growth of  our  peculiar  and  ditficult  environment  with  powers 
abridged  beyond  all  parallel  or  precedent  in  the  history  of  the  Con- 
stitution. Our  task  has  been  to  dove-tail  together two^dist  iiu.t. 
mechanisms  far  separated  as  to  political  sixe.  It  will  not  be  Mir- 


274  SOUTH  DAKOTA  DEBATES,  1889. 

prising  then  if  some  judicial  fillings  may  be  found  to  be  necessary 
to  perfect  the  symmetry  of  our  work.  Be  this  as  it  may,  your 
Committee  will  ever  remember  having  worked  in  harmony  at  t'mes 
on  different  lines  but  to  one  common  end  and  looking  for  one  com- 
mon light  and  your  Committee  believes,  in  submitting  this  report, 
they  furnish  you  for  your  consideration  a  safe  .chart  to  statehood. 
We  agree  upon  all  matters  but  one ;  wherein  we  do  agree  we  ask  that 
no  radical  change  be  made  without  careful  and  painstaking  con- 
sideration by  this  Convention,  as  this  Schedule  which  we  have  sub- 
mitted is  the  outgrowth  of  much  deliberation  and  thought,  and 
wherein  we  differ  we  ask  that  there  may  not  be  haste.  But  may 
every  delegate  carefully  consider  the  responsibility  and  possibilities 
of  his  vote  and  act  as  becomes  the  dignity  and  importance  of  this 
subject.  May  it  be  put  in  the  minds  of  every  member  of  this  Con- 
vention to  ask  wisdom  from  that  unerring  source  to  guide  us  to 
rightly  consider  our  duty  to  our  God,  to  ourselves  and  to  the  great 
State  to  be;  Mr.  President,  I  move  the  adoption  of  the  report. 

.Mr.  Peck:  I  beg  to  move,  seconded  by  Mr.  Williams,  the  fol- 
lowing resolution,  that  Section  7  of  the  report  of  the  Committee 
on  Schedule  and  Ordiannce  be  amended  by  adding  the  following 
thereto: 

Amendment  sent  to  the  desk  of  the  Clerk. 
Mr.  Peck:  I  do  not  propose,  Mr.  President,  to  occupy  any 
time  at  all  in  discussing  this  resolution  that  I  have  just  submitted; 
That  amendment  we  offered  has  so  fully  been  gone  over  by  every 
member,  and  I  think  so  fully  understood,  it  would  be  a  piece  of  pre- 
sumption on  my  part  to  expect  to  enlighten  any  of  the  members. 
I  am  simply  acting  as  representative  of  the  people  who  sent  me 
here.  I  was  instructed  to  get  as  near  the  Australian  system  of 
voting  as  I  could.  That  is  not  the  Australian  system ;  I  do  not 
claim  for  it  perfection,  it  is  the  principal  we  are  after  and  if  the 
principle  of  it  is  adopted  we  can  then  go  into  Committee  of  the 
Whole  and  submit  the  revision  of  the  resolution,  and  as  I  will  ever 
pray.  I  shall  simply  confine  myself  to  correcting  any  person  who 
has  mistaken  any  of  the  provisions  of  this  resolution ;  I  shall  simply 
claim  in  the  end,  the  right  to  explain  them  and  no  more ;  I  want  no 
more. 

The  President:  I  would  ask  the  gentleman  if  he  prefers  to 
take  it  up  now  ?  I  suggest  to  the  Convention  I  think  a  more  proper 
and  parlimentary  method  would  be  to  read  it  section  by  section 


SCHEDULE  AND  ORDINANCE  275 

and  let  this  amendment  be  made  as  we  reach  the  section.  Unless 
I  am  directed  otherwise,  I  shall  direct  the  Clerk  to  read  it  section 
by  section. 

Mr.  IVrk:  As  long  as  n  y  motion  stands  there  I  have  no  ob- 
jection. 

Mr.  Van  Buskirk:  Inasmuch  as  there  are  two  reports,  I  would, 
move  that  the  consideration  of  the  report  of  the  Schedule  Committee 
and  the  two  reports  of  the  Judiciary  Committee  be  taken  up  and 
considered  together. 

Motion  received  a  second. 

The  President:  If  I  remember  this  report  from  the  Judiciary 
Committee,  it  was  only  their  opinion  as  to  a  legal  question — pos- 
sibly it  may  be  a  recommendation  as  to  the  election, — I  do  not 
remember. 

Mr  Sterling:  The  Committee  did  express  it  as  their  opinion 
that  the  Convention  had  the  power  to  provide  for  the  election  of 
Circuit  Clerk  and  recommended  that  to  the  Schedule  and  Ordinance 
Committee  and  that  a  provision  to  that  effert  be  put  into  the 
Schedule  and  Ordinance.  That  was  the  report  of  the  Judiciary 
Committee  on  that  question. 

Mr.  Jolley:  By  adopting  or  rejecting  either  the  majority 
or  the  minority  reports  we  can  decide  one  thing  or  the  other  and 
when  the  Schedule  is  amended  if  the  majority  of  this  Convention 
are  in  favor  of  electing  the  Clerk  this  fall,  then  it  becomes  a  part 
of  the  rule  adopted. 

Mr.  Wood  of  Pennington:  I  would  suggest  there  is  a  care- 
fully prepared  amendment. 

The  President:     I  think  that  covers  the  whole  ground. 

Mr.  Van  Buskirk:  All  I  care  for  is  simply  to  expedite  the 
business  of  the  Convention. 

Mr.  Wood:  I  would  suggest  that  we  now  have  the  amendment 
at  this  time,  that  would  present  the  question  in  the  proper  light 
before  the  Convention. 

The  President:  It  seems  to  me  the  more  regular  way  of 
reaching  these  amendments  would  be  in  Committee  of  the  Whole, 
reading  it  section  by  section;  otherwise  we  will  never  get  through 
to  the  consideration  of  the  report  of  the  Schedule  Committee. 
Unless  otherwise  directed  by  the  Convention  the  Clerk  will  read 
section  by  section  and  when  the  amendment  pertaining  to  any 
section,  as  it  is  read,  the  amendment  can  be  offered.  The  gentle- 


276  SOUTH  DAKOTA  DEBATES  1889 

man  from  Hamlin  presented  his  amendment  to  Section  7  when 
we  read  Section  7,  I  will  instruct  the  Secretary  to  pause  long  enough 
that  it  may  be  heard  and  considered  by  the  Convention. 

Mr.  Fellows:  I  move  that  we  go  into  Committee  of  the  Whole 
upon  consideration  of  the  report  of  the  Committee  on  Schedule. 

Which  motion  did  not  receive  a  second.. 

The  President:     Proceed  with  the  reading. 

Clerk  reads  Section  1. 

Mr.  Young:     I  move  the  adoption  of  this  section. 

The  President:  There  is  pending  a  motion  which"" is  the 
adoption  of  the  whole  report  by  the  Chairman  of  the  Committee. 

Mr.  Young:     The  motion  is  withdrawn. 

Mr.  Hole:  As  we  will  strike  a  place  directly  where  we  cannot 
agree  but  will  diverge  into  a  long  discussion,  if  it  will  facilitate 
matters  I  will  change  the  motion  to  adopt  it  section  by  section  and 
then  we  will  clear  this  up  as  we  go.  I  will,  with  the  consent  of  the 
second  withdraw  the  motion  to  adopt  the  report  as  a  whole. 

The  President:  The  question  before  the  Convention  is,  shall 
Sec.  1  be  adopted  by  the  Convention. 

This  question  on  reaching  a  vote,  the'  President  declared  the 
result  to  b:  as  follows:  "The  ayes  ha\  e  it  Sec.  1  is  adopted." 

The  Clerk  read  Section  2. 

Mr.  Hole:     I  will  make  the  same  motion  as  to  Section  2. 

Which  motion  prevailed. 

Section  3  read  by  the  Clerk. 

Mr.  Sherwood:  I  rise  to  ask  an  explanation  of  the  words 
"Within  the  boundary  of  the  State  of  South  Dakota".  It  seems  to 
me  in  that  provision,  a  bond  executed  any  place  outside  of  the 
State  of  South  Dakota,  even  by  residents  of  the  State,  would  be 
entirely  null  and  void. 

Mr.  Van  Buskirk:  I  have  thought  of  that  and  suggest  that 
as  far  as  the  officer  is  concerned  that  it  states  as  to  any  office  therein, 
— and  move  that  the  word  "therein"  be  inserted  after  the  word 
"officer". 

The  motion  received  a  second. 

Mr.  President:  It  is  moved  by  the  gentleman  from  Codington 
that  the  word  "therein"  be  inserted  in  the  eighth  line,  after  the 
second  word  of  the  eighth  line.  Those  of  the  opinion  that  the 
motion  prevail  say  "aye";  those  of  the  contrary  opinion  say  "no". 


TERMS  OF  TERRITORIAL  OFFICERS  277 

The  ayes  have  it  and  Section  3  is  amended  by  inserting  the  word 
"therein"  after  the  word  "officer." 

Question  recurring  upon  the  adoption  of  Section  3,  as  amended 
was  adopted. 

Clerk  reads  Setcion  4:  All  officers,  civil  and  military,  now 
holding  their  offices  and  appointments  in  this  Territory  under  the 
authority  of  the  United  States,  or  under  the  authority  of  the  Ter- 
ritory of  Dakota,  shall  continue  to  hold  and  exercise  their  respec- 
tive offices  and  appointments  until  superseded  under  this  Con 
stitution. 

Provided;  That  the  provisions  of  the  above  sections  shall  be 
subject  to  the  provisions  of  the  act  of  Congress  providing  for  the 
admission  of  the  State  of  South  Dakota,  approved  by  the  President 
of  the  United  States,  on  February  22,  1889. 

Mr.  Hole:     I  move  the  adoption  of  the  section  just  read. 

The  President:  The  Chairman  of  the  Committee  moves  the 
adoption  of  Section  4 ;  as  many  as  are  of  the  opinion  that  the  motion 
prevail,  5  ay  aye ;  the  ayes  have  it,  Section  4  is  adopted. 

Mr.  Williams:  I  have  one  or  two  amendments  prepared  con- 
cerning this  section  and  before  I  offer  it  I  wish  to  suggest  verbally 
an  amendment  in  the  second  paragraph  from  the  last,  after  the 
word  "and"  in  the  first  line, — 

Mr.  Hole:  That  is  a  mere  clerical  error  in  this  line  and  also  the 
last  'ine. 

Mr.  Williams:  I  have  an  amendment  which  I  offer  further 
and  I  will  say  that  I  have  a  number  of  amendments  to  offer  to  the 
different  sections  and  they  are  all  fastened  together  on  the  same 
paper.  I  will  read  them,  I  move  that  the  report  of  the  Committee 
on  Schedule  and  Ordinance  be  amended  as  follows:  That  Section 
5  be  amended  as  fellows':  After  the  word  "State"  in  the  fourth 
line  of  the  7th  paragraph  insert  the  words  "and  county"  so  it  will 
read  "for  the  following  State  and  county  officers"  and  at  the  end  of 
paragraph  8  of  said  section  add  the  words  "and  Clerk  of  Circuit 
Court".  I  move  the  adoption  of  the  amendments. 

Which  motion  received  a  second. 

The  President:  It  is  moved  to  amend  Section  5  by  inserting 
after  the  word  "State"  the  words  "and  county"  and  at  the  end  of 
paragraph  8  "and  clerk  of  the  Circuit  Court". 

Mr.  Williams:  That  is  the  question  referred  to  by  Mr.  Van 
Buskirk.  It  is  a  question  upon  which  members  of  the  Convention 


278  SOUTH  DAKOTA  DEBATES  1889 

have  differed  and  a  question  upon  which,  while  differing,  we  are 
very  desirious  it  should  be  settled  in  accordance  with  the  Consti- 
tution and  the  Omnibus  Bill,  and  what  is  right  and  just.  Of  course 
this  question  is  confined  there  in  the  Omnibus  Bill;  does  it  provide 
by  Ordinance  for  the  election  of  Clerk  of  the  Circuit  Court?  Those 
who  favor  the  proposition  that  we  have  authority  under  the  Omni- 
bus Bill  for  the  election  of  Circuit  Clerk,  base  our  belief  upon  two 
different  parts  of  the  Omnibus  Bill.  Section  9  — I  will  read  all  of 
Section  9  so  as  to  get  the  commencement, — "Sec.  9.  That  until  the 
next  general  census,  or  until  otherwise  provided  by  law,  said  States 
shall  be  entitled  to  one  representative  in  the  House  of  Representa- 
tives of  the  United  States,  except  South  Dakota,  which  shall  be 
entitled  to  two;  and  the  representatives  to  the  fifty-first  Congress 
together  with  the  Governors  and  other  officers  provided  for  in  said 
Constitutions,  may  be  elected  on  the  same  day  of  the  election  for 
the  ratification  and  rejection  of  the  Constitutions ;  and  until  said  State 
officers  are  elected  and  qualified  under  the  provisions  of  each  Con- 
stitution and  the  States,  respectively,  are  admitted  into  the  Union, 
Ihe  Territorial  officers  shall  continue  to  discharge  the  duties  of  their 
respective  offices  in  each  of  said  Territories." 

Now  I  take  it  that  that  means  this:  The  words  "other  officers," 
that  without  any  stretch  of  construction,  this  Convention  under  that 
is  authorized  to  provide  for  the  election  of  every  officer  of  the  State 
and  county  provided  for  in  this  Constitution.  And  though  we  do 
not  carry  it  to  that  extent,  I  believe  we  have  that  authority  ;  that  it 
is  not  only  the  duty  and  privilege  of  this  Convention,  and  power, 
but  it  is  the  duty  of  the  Corfc-ention  to  provide  for  this  office ;  why? 

I  believe  it  is  generally  conceded  that  the  Clerk  of  the  District 
Court  under  the  present  system  that  we  have  when  the  Stafe  gov- 
ernment comes  into  existence  and  the  District  Court  going  out  of 
existence  that  the  Clerk  will  follow  and  that  we  will  have  the  office 
and  election  of  the  Judge  of  Circuit  Court  as  provided  for ;  but  there 
is  no  p-ovision  made  for  the  clerical  work  of  that  Court;  then  we 
will  have  a  court  without  any  clerk ;  that  is  conceded  by  some  as  be- 
ing the  condition  in  which  we  will  find  ourselves  after  we  are  ad- 
mitted. Now  that  being  the  case  in  our  view  it  is  necessary  1  o  fill 
that  office.  While  this  C invention  may  by  ordinance  have  power 
to  fill  it  as  the  Convention  of  1885  did  by  providing  that  the  Clerk 
will  held'  over,  I  think  it  is  very  doubtful.  The  Constitution 
adopted  in  1885  by  which  we  are  bound,  provides  that  the  Clerk 


CLERKS  OF  COURT  279 

of  the  Circuit  Court  is  an  elective  office.  I  hold,  that  being  an 
elective  office  that  the  Clerk  of  the  Court  must  be  elected  before  an 
appointment  can  be  made  to  fill  a  vacancy.  Sec.  32  of  Art.V  of 
the  Constitution  reads  as  follows:  "There  shall  be  a  Clerk  of  the 
Circuit  Court  in  each  organized  county,  who  shall  also  be  clerk  of 
the  county  court  and  who  shall  be  elected  by  the  qualified  electors 
of  such  county.  The  duties  and  compensation  of  said  Clerk  shall 
be  as  provided  by  law  and  regulated  by  the  rules  of  the  court  con 
sistent  with  the  provisions  of  law".  Then  the  Constitution  un- 
equivocally provides  for  that  office.  We  have  another  section  of 
the  Omnibus  Bill  that  is  still  more  sweeping  in  its  terms  and  ex- 
presses this  view.  Sec.  24  reads  as  follows:  "That  the  Consti- 
tutional Convention  may  by  ordinance  provide  for  the  election  of 
officers  for  a  full  State  government." 

For  the  election  of  officers  for  a  full  state  government !  We  hold 
further  that  the  phrase  "full  state  government"  does  not  mean  the 
officers  usually  denominated  State  officers,  only,  but  officers  that 
will  make  a  state  government  complete  in  all  its  parts.  Not  only 
does  it  say  in  my  judgment  entitled  by  this  instrument,  but  this, 
including  county  officers,  and  other  officers  that  are  provided  for  in 
this  Constitution.  I  believe  that  phrase  will  include  all  of  them. 
Taking  these  two  sections  there  is  no  question  but  what  the  power 
is  provided  for  us  to  provide  for  the  election  of  the  Clerk  of  the 
Court. 

Sec.  5  of  Article  IX  of  the  Sioux  Falls  Constitution  we  have  the 
reason  for  some  objections  that  are  raised  to  the  position  that  I 
maintain  with  others.  That  section  reads  as  follows:  "In  each 
organized  county  at  the  first  general  election  held  after  the  ad- 
mission of  the  State  of  Dakota  into  the  Union  and  every  two  years 
thereafter  there  shall  be  elected  a  Clerk  of  the  Court,  etc.  It  says 
at  the  first  general  election  there  shall  be  elected  a  Clerk  of  the 
Circuit  Court.  This  Constitution,  while  it  provides  and  defines 
when  and  what  a  general  election  is,  in  a  certain  way,  the  term 
general  election  is  used  there ;  there  was  a  definition  of  the  term 
"general  election",  in  cases  of  all  general  elections  occurring  on  even 
numbered  years. 

Then  under  this  provision  the  Oerk  of  the  Circuit  Court  will 
be  elected  in  June,  1890.  Xo\v  how  are  we  to  bridge  over  until 


280.  SOUTH  DAKOTA  DEBATES  1889 

1890?  That  is  a  point  that  is  interesting  many  of  us.  We  want 
to  provide  for  that  office  until  November,  1890.  Looking  at  the 
Omnibus  Bill  we  have  found  in  two  sections  ample  authority  for 
this  Convention  to  provide  for  that.  I  believe  not  only  that  we 
have  authority,  but  it  is  our  duty  to  do  so  and  it  is  generally  de- 
manded by  the  people  we  represent  to  provide  for  this  election. 

A  Voice:     Let  us  hear  the  section  under  consideration,  read. 

The  Clerk  reads  Section  5. 

Mr.  Van  Buskirk:  We  have  with  some  other  members  of  the 
Committee  reached  a  somewhat  different  conclusion  with  reference 
to  the  position  which  we  occupy  upon  this  particular  subject.  I 
have  supposed  that  when  Congress  was  dealing  with  the  question 
that  they  were  taking  into  consideration  what  usually  in  the  history 
of  the  administration  of  the  law  as  it  had  existed  in  other  states 
would  be  made  to  apply  here  and  to  that  history  we  may  refer  for 
the  purpose  of  determining  what  offices  are  referred  to  here  and 
included  within  the  provisions  of  the  Omnibus  Bill.  I  will  call 
the  attention  of  the  members  to  the  Second  Article  of  the  Consti- 
tution of  Dakota,  known  as  the  Sioux  Falls  Constitution.  I  do  this 
for  the  purpose  of  their  observing  that  all  state  constitutions  like 
ours  contain  this  provision.  I  do  it  for  the  purpose  of  ascertaining 
who  are  state  officers  in  particular. 

"The  powers  of  the  government  of  the  State  are  divided  into 
three  distinct  departments,  the  Legislative,  Executive  and  Ju- 
diciary. And  the  powers  and  duties  of  each  are  prescribed  by  this 
Constitution".  Now  we  will  remark  that  while  we  have  theoret- 
ically a  State  possibly  without  any  difference  in  the  administration 
of  law,  practically  we  have  no  State  government  without  the  election 
of  State  officers.  And  that  when  they  are  speaking  in  the  Enabling 
Act  of  "State  officers,"  they  are  referring  to  officers  who  fill  these 
different  positions  necessary  to  the  exercise  of  the  powers  of  the 
State  government.  The  government  of  the  State  can  be  exer- 
cised by  officers  filling  these  particular  positions  in  existence. 
The  members  of  the  Legislature  would  make  the  law  of  the  State 
the  courts  would  determine  the  meaning  and  interpretation  of 
them  and  issue  their  process  and  put  them  into  the  hands  of  the 
Executive  Department  and  they  would  be  executed ;  and  certain  of 
the  other  officers  like  the  Treasurer,  would  constitute  a  branch 
which  would  be  called  the  Executive,  the  Legislature  would  be 
the  Legislative  Department ;  the  Judicial  officers  would  exercise  the 


CLERKS  OP  COURK  281 

Judiciary  functions ;  when  you  have  got  those  you  have  got  all 
that  is  perhaps  absolutely  necessary  to  constitute  a  whole  state 
government.  As  I  have  said,  I  apprehend  that  when  Congress  was 
using  the  terms  which  they  have  used  in  the  Omnibus  Bill  they  were 
using  them  in  the  light  of  the  provision  that  was  contained  in  this, 
and  which  provision  is  contained  in  all  other  constitutions.  Now, 
let  us  proceed  a  little  further  and  consider  this  Omnibus  Bill.  The 
Section  9,  to  which  my  Brother  Williams  has  referred,  "That  until 
the  next  general  census,  or  until  otherwise  provided  by  law,  said 
states  shall  be  entitled  to  one  representative  in  the  House  of  Rep- 
resentatives of  the  United  States,  except  South  Dakota,  which 
shall  be  entitled  to  two;  and  the  Representatives  to  the  Fifty-first 
Congress,  together  with  the  Governors  and  other  officers  provided 
for  in  said  Constitutions,  may  be  elected  on  the  same  day  of  the 
election  for  the  ratification  or  rejection  of  the  Constitutions ;  and 
until  said  State  officers  are  elected  and  qualified  under  the  provisions 
of  each  Constitution  and  the  States,  respectively,  are  admitted  into 
the  Union,  the  Territorial  officers  shall  continue  to  discharge  the 
duties  of  their  respective  offices  in  each  of  said  Territories." 

Now,  I  suppose  by  a  familiar  rule  when  we  speak  of  other 
officers,  we  are  referring  to  a  particular  class,  to-wit:  The  State 
officers,  among  which  the  Governor  is  one;  that  when  they  state 
other  State  officers  they  refer  to  that  class  which  immediately  pre- 
ceeds,  to-wit:  The  Executive  Department  of  the  Government, 
and  do  not  refer  to  county  officers.  And  I  am  further,  by  that 
section,  inclined  to  that  belief.  We  find  before  we  conclude  that 
section,  "and  until  said  State  officers  are  elected"  the  Territorial 
government  shall  remain. 

Taking  the  first  part  even  without  the  other,  I  should  arrive 
at  that  conclusion;  I  am  confirmed  in  the  belief  that  that  was  what 
was  meant  from  the  fact  that  they  state  "  until  the  State  officers 
are  elected"  and  qualified,  etc.  I  do  not  see  how,  under  that,  you 
can  rationally  reach  any  other  conclusion,  but  that  they  are  speak- 
ing of  the  governors  and  Treasurer  and  Auditor  and  perhaps  the 
Superintendent  of  Schools ;  that  those  are  the  officers  denominated 
State  officers. 

Now,  I  understand  very  well  in  the  early  legislation  of  this 
country  we  had  no  difficulty  in  separating  the  State  from  the  county 
officers.  If  an  individual  inquires  "Who  arc  the  State  officers.  I 
do  not  think  anybody  ever  thought  of  stating  they  included  Mr. 


282  SOUTH  DAKOTA  DEBATES  1889 

Register  of  Deeds,  or  Constable,  or  Mr.  Pathmaster;  but  he  would 
say  the  Governor  and  Treasurer  and  Judges  of  the  Circuit  Court 
were  State  officers.  Here  is  another  matter  stated  perhaps  in  most 
all  of  our  constitutions;  it  is  found  in  this  one;  a  provision  which 
says  in  case  of  a  vacancy  the  Governor  shall  appoint  all  these  of- 
ficers down  to  the  County  Judge;  the  other  officers  are  to  be  ap- 
pointed by  the  Board  of  County  Commissioners.  It  seems  that 
in  our  Constitution, — and  I  assume  that  Congress  drew  that  line 
right  through  there  separating  the  officers  of  State  from  the  county 
officers.  It  seems  to  me  that  is  what  it  means.  We  may  proceed 
to  another  provision  of  this  Omnibus  Bill,  w^hich  adds  force  to  this 
concktsion.  I  read  it:  "That  the  Constitutional  Convention  may 
by  ordinance,  provide  for  the  election  of  officers  for  full  State 
government  including  the  members  of  the  Legislature  and  Repre- 
sentatives of  the  Fifty-first  Congress".  It  seems  a  little  singular 
to  me  that  if  all  other  officers  aside  from  those  that  are  determined 
State  officers  were  included  within  those  teims  they  should  have 
taken  so  much  pains  as  to  have  said  "including  the  members  of 
the  Legislature".  Now  that  circumstance,  using  that  language 
forces  me  to  the  conclusion  that  they  intended  when  they  spoke  of 
the  officers  of  the  State  government  to  have  in  mind  those  which  I 
have  mentioned,  and  to  have  no  question  about  it  they  say  in- 
cluding the  members  of  the  Legislature.  It  seems  to  me  that  if 
they  had  intended  that  every  officer  down  to  Pathmaster  was  to  be 
denominated  a  State  officer,  they  would  not  have  taken  pains  to 
have  used  that  language  at  all.  We  read  a  little  lower  "But  that 
said  State  government  shall  remain  in  abeyance  until  the  States 
shall  be  admitted  into  the  Union,  as  provided  in  this  act". 

Now  this  Legislature,  together  with  another  rule  which  Con- 
gress had  no  doubt  in  mind,  (it  seems  they  had  confined  themselves 
to  the  Constitution  of  1885  a  great  many  times)  they  indicate  a 
provision  which  reads  in  this  way,  that  there  shall  be  elected  at  the 
first  general  election  after  the  admission  of  this  State  into  the  Union, 
county  officers,  which  includes  this  Clerk  of  the  Circuit  Court.  I 
say  I  assume  from  the  circumstance  that  they  had  had  this  Con- 
stitution before  them  so  many  times  and  so  long  that  these  pro- 
visions were  in  their  minds  and  before  them  when  they  drew  this 
Omnibus  Bill;  they  anticipated  or  intended  that  that  should  be 
correct  and  that  that  should  be  the  result  of  it  and  that  that  was 
the  construction  they  put  upon  it  from  the  language  used  in  this 


CLERKS  OF  COURT  283 


Omnibus  Bill  that  perhaps  constitutes  the  principal  legal  objection 
to  the  introduction  of  this  amendment  into  the  ordinance.  It  seems 
to  me  remarkable  that  we  should  stoop  in  this  Convention, — that 
we  should  stoop  to  provide  for  one  solitary  county  officer  as  a  matter 
oLpolicy. 

It  is  simply  a  question  of  whether  or  not  we  have  got  the  power ; 
I  take  it  under  the  provisions  of  this  bill  that  these  county  officers 
hold  over;  and  the  very  fact  that  they  say  in  this  Constitution, 
"Clerk  of  the  Circuit  Court";  I  cannot  think  that  that  has  any 
significance,  because  if  we  take  what  they  do  in  some  of  the  other 
states,  where  the  courts  are  denominated  "District  Courts",  just 
as  many  of  the  States  instead  of  taking  the  term"Circuit  Court" 
continue  the  original,— in  the  State  of  Iowa,  they  continue  the 
name,  "in  District  Court".  The  mere  circumstance  that  a  Court 
exercising  the  same  jurisdiction  under  the  Constitution  is  to  be 
called  Circuit  Courts  here  with  the  same  jurisdiction  that  was  ex- 
ercised under  the  law  previously  in  existence,  to-wit:  The  Dis- 
trict Court  and  which  is  the  same  Court,  and  which  exercises  the 
same  jurisdiction  succeeds  to  all  the  powers  and  succeeds  to  all 
the  unfinished  business  contained  therein, — the  mere  fact  that  they 
state  this  shall  be  called  the  Circuit  instead  of  the  District  Court 
can  have  no  significance  so  far  as  the  Clerk  being  a  County  officer.. 
I  think  you  will  find  also  that  so  far  as  our  statute  is  concerned,  it 
provides  for  a  Clerk  of  the  District  Court.  We  have  a  statute  upon  our 
books  passed  by  the  Legislature  of  the  Territory,  in  which  it  was  con- 
sidered a  county  office  just  as  much  as  the  Register  of  Deeds,  and 
perhaps  many  of  us  will  remember  at  the  next  general  election  that 
in  many  counties  of  this  Territory  they  went  to  work  and  elected 
Clerk  of  the  District  Court.  It  seems  to  me  that  the  circumstance 
that  the  Legislature  of  this  Territory  in  the  next  session  after  'the 
adoption  of  the  Constitution  of  1885,  provided  for  the  election  of 
this  officer,  Clerk  of  the  Court  as  a  county  officer,  must  settle  in 
the  mind  of  every  careful  citizen  the  fact  that  they  are  not  State 
officers,  but  simply  county  officers  who  hold  over  under  the  laws 
of  the  Territory. 

Mr.  Williams:  I  do  not  wish  to  prolong  this  debate,  but  I 
wish  to  correct  an  error.  He  reads  Article  second  of  -the  Constitu- 
tion in  support  of  his  doctrine;  I  wish  to  read  it:  "The  powers  <>t" 
the  government  of  the  State  are  divided  into  three  distinct  depart- 
ments,— the  Legislative.  Executive  and  Judicial,  and  the  powers 


284  SOUTH  DAKOTA  DEBATES  1889 

and  duties  of  each  are  prescribed  by  this  Constitution".  He  goes 
on  to  say  the  powers  of  each  are  distinct  and  separate.  Now  the 
Ordinance  does  not  say  that  we  can  provide  by  ordinance  for  the 
election  of. the  officers  of  each  of  these  departments!  It  goes  on  to 
say  the  powers  of  the  government  are  divided  into  three  classes, — • 
three  distinct  classes, — that  is  what  Article  II  is;  it  provides  that 
the  powers  of  government  enacted  there  and  exercised  by  the  will 
of  the  people  is  divided  into  three  departments  laid  down,  and  in 
order  that  these  three  departments  of  government,  as  laid  down, 
may  not  fail,  we  will  turn  to  another  article.  Article  V  and  see 
what  is  necessary  to  complete  these  three  powers  of  government. 

The  Judicial  powers  of  the  State,  except  as  in  this  Constitution 
otherwise  provided,  shall  be  vested  in  the  Supreme  Court,  Qircuit 
Courts,  County  Courts,  and  Justices  of  the  Peace,  and  such  other 
courts  as  may  be  created  by  law  for  cities  and  incorporated  towns. 

According  to  his  own  doctrine,  in  order  that  the  full  State 
government  may  be  filled,  we  must  elect  the  Justices  of  the  Peace. 
I  want  the  members  of  the  Convention  to  think  of  that,  I  want 
to  correct  another  mistake;  that  is  this:  The  gentleman  from 
Codington  said,  after  the  adoption  of  the  Constitution  in  1885  that 
the  Legislature  went  to  work  and  provided  for  the  Clerk  of  the  Dis- 
trict Court ;  my  understanding  of  that  is  that  the  Clerk  of  the  Dis- 
trict Court  was  provided  by  Act  of  the  Legislature  prior  to  that, 
because  I  have  a  distinct  recollection  that  the  question  came  up 
in  1884  and  1885  and  the  attempt  was  made  in  our  town  to  elect 
one ;  and  that  it  was  overruled ;  that  it  was  decided  by  the  bar  of 
this  Territory  that  the  Legislature  had  no  power ;  the  point  I  wish  to 
make  is  this,  that  the  statute  was  not  passed  in  pursuance  of  this 
Constitution  of  1885,  but  was  an  act  of  the  Legislature  without 
reference  to  this. 

Mr.  Wood  of  Pennington:  I  desire  to  say  a  few  words  on  this 
question  and  for  two  reasons ;  I  am  mistaken  in  my  understanding 
of  the  proposition  or  else  the  gentleman  who  resisted  the  election 
of  the  Clerk  of  Court  at  a  common  election  was  mistaken.  This  is 
a  matter  that  we  should  get  right  upon,  if  we  can.  In  the  first 
place  the  report  of  the  Committee  provides  in  section  four,  "All 
officers,  civil  and  military,  now  holding  their  offices  and  appoint- 
ments in  this  Territory,  under  the  authority  of  the  United  States, 
or  under  the  authority  of  the  Territory  of  Dakota,  shall  continue  to 


CLERKS  OF  COURT  285 


hold  and  exercise  their  respective  offices  and  appointments  until 
superseded  under  this  Constitution". 

We  are  told  here  by  the  gentleman  from  Codington  that  it  is 
the  same  court;  let  us  see  about  that.  These  courts,  under  the 
Constitution  will  be  State  Courts ;  there  will  be  no  issue  raised  upon 
that  proposition.  Now  we  take  that  for  granted  and  I  think  it  is 
granted  that  they  are  State  Courts.  Hardly  the  District  Courts  of 
the  Territory  of  Dakota;  they  are  Federal  Courts,  that  is  with  this 
difference ;  they  have  the  jurisdiction  conferred  by  our  Statute  upon 
the  District.  Courts  and  in  addition  to  that  they  have  the  Jurisdic- 
tion of  the  United  States  Circuit  and  District  Courts  conferred  upon 
them  by  the  United  States  Circuit  and  District  Courts  and  they 
have  the  jurisdiction  of  those  courts  conferred  by  law. 

Will  the  gentleman  contend  for  one  moment,  can  anyone  con- 
tend on  principle  that  our  Circuit  Courts,  after  we  are  admitted  into 
the  Union,  and  these  Courts  are  organized,  will  it  be  contended  that 
they  are  the  same  grade  or  successor  of  the  District?  Why,  it  is 
the  creation  of  a  different  and  distinct  tribunal  and  Court!  Not 
the  same  at  all.  Every  one  of  these  District  Courts  of  the  Ter- 
ritory, get  their  life  not  from  any  law  of  the  Territory ;  I  apprehend 
in  the  first  instance  they  get  their  life  and  authority  from  the  Or- 
ganic Act.  Hence,  they  are  not  Territorial  Courts  in  the  sense  of 
being  merged  into  State  Courts;  their  Clerks  are  appointed  by  the 
Courts  themselves ;  we  have  the  same  provision  relative  to  the 
Clerks  of  the  Supreme  Court  and  the  reporters  of  the  Supreme  Court: 
"There  shall  be  a  Clerk  and  also  a  Reporter  of  Supreme  Court  who 
sliall  be  appointed  by  the  Judges  thereof  and  who  shall  hold  their 
office  during  the  pleasure  of  the  Judges".  It  is  not  even  an  elective 
office.  What  business  have  we  to  provide  for  other  offices  not  to 
be  superceeded  by  the  State  government?  Is  the  office  of  Sheriff 
to  be  superseded?  Or  Coroner  or  Probate  Court?  That  Court 
is  superseded  by  the  County  Court  in  other  words  there  is  a  merger 
itito  the  county  courts. 

Who  will  contend  that  a  County  Judge  is  a  State  officer?  We 
are  cited  to  the  Second  Article  of  the  Constitution,  which  defines 
that  departments  into  which  the  State  government  is  divided. 
the  Legislative,  Executive  and  Judiciary .  Who  will  say  all 
Judiciary  oVfu  ers  are  State  officers?  I  think  the  gentleman  will  not 
contend  that  a  Justice  of  the  Peace  is  a  State  officer,  yet  the  Con- 
stitution in  enumerating  the  phu  cs  under  the  judicial  powers. 


286  SOUTH  DAKOTA  DEBATES  1889 

names  the  Justice  of  the  Peace  as  one  of  them.  He  is  not  a  State 
officer  in  any  sense.  Where  do  we  hear  of  a  Jusitce  of.  the  Peace 
being  superesded  by  the  State  government? 

They  have  been  elected,  qualified  and  gone  about  their  busi- 
ness as  provided  under  the  laws  of  the  Territory  ;  they  are  not  super- 
ceeded;  that  is,  their  business  is  not  affected  by  the  terms  of  the 
Constitution. 

Now,  it  is  plain,  one  of  the  first  questions  that  will  arise  unless 
we  provide  for  the  election  of  the  Clerks  of  Circuit  Court ;  they  are 
ex-officio  Clerks  of  the  County  Court.  For  fear  that  will  not  be 
understood,  I  refer  the  Convention  to  Sec.  32,  of  Article  V,  and  you 
will  see  that  they  are  ex-officio  Clerks  of  the  County  Court.  The 
section  referred  to  reads  as  follows:  "There  shall  be  a  Clerk  of  the 
Circuit  Court  in  each  organized  county,  who  shall  also  be  Clerk  of  the 
County  Court,  and  who  shall  be  elected  by  the  qualified  electors 
of  such  county.  The  duties  and  compensation  of  said  Clerk  shall 
be  as  provided  by  law  and  regulated  by  the  rules  of  the  Court  con- 
sistent with  the  provisions  of  law". 

The  Schedule  report  has  provided  for  the  election  of  the 
County  Judge ;  it  is  contended  that  he  is  a  State  officer.  Turning 
to  Section  19  of  Article  V  it  reads  as  follows:  "There  shall  be 
elected  in  each  organized  county  a  County  Judge  who  shall  be  Judge 
of  the  County  Court  of  said  county,  whose  term  of  office  shall  be 
two  years,  until  otheriwse  provided  by  law."  What  is  the  Consti- 
tution defining  in  that  office?  It  is  a  county  office.  "There  shall 
be  elected  in  each  organized  county"  what?  A  state  officer,  to  be 
known  and  termed  County  Judge  ?  Not  at  all !  But,  in  each  county 
shall  be  elected  a  county  Judge.  His  office  is  a  County  office,  known 
as  County  Judge.  You  are  to  provide  for  the  election  of  a  County 
Judge,  yet  you  pretend  that  he  is  a  State  officer;  whereas  the  Clerk 
of  his  Court,  being  a  Clerk  ex-officio,  is  not  a  State  officer  but  a 
county  officer— now  where  do  you  draw  the  line  ? 

Mr.  Dickinson:  "All  officers  provided  for  in  this  Article  shall 
respectively  reside  in  the  district,  county,  precinct,  city,  or  town 
for  which  they  may  be  elected  or  appointed"  ? 

Mr.  Wood:  Very  well.  Gentlemen  of  the  Convention;  No- 
taries Public  are  appointed  by  the  Governor ;  they  are  not  elected  at 
all ;  are  they  considered  Territorial  officers  ?  I  think  you  will  find 
with  the  exception  of  the  States  of  California  and  Kentucky  that 
the  courts  hold  that  they  are  State  officers.  A  different  rule  pre- 


CLERKS  OF  COURT  287 

vails  in  some  of  the  states  they  are  authorized  to  perform  the  duties 
and  functions  of  that  office  simply  in  the  county  where  their  cer- 
tificate of  appointment  is  recorded.  They  can  of  course  have  it 
recorded  in  each  county  in  the  State,  but  until  so  rcorded  they  can 
only  act  on  the  county  where  it  is  so  recorded.  Then  the  distinction 
in  the  appointing  power  to  fill  vacancies ;  the  distinction  is  as  to 
whether  the  office  is  a  county  or  a  State  office.  "Vacancies  in  the 
elective  offices  provided  for  in  this  Article  shall  be  filled  by  ap- 
pointment until  the  next  general  election  as  follows:  All  Judges 
of  the  Supreme,  Circuit  and  County  Courts  by  the  County  Board 
of  the  county  where  the  vacancy  occurs ;  in  cases  of  police  magis- 
trates, by  the  municipality."  The  Governor  is  told  to  fill  the  va- 
cancy in  the  County  Judge's  office  by  appointment;  but  does  that 
determine  to  your  satisfaction,  and  from  that  reasoning  can  you 
say  it  creates  and  makes  the  Judge  of  the  County  Court  and  his 
Clerk  a  State  officer?  If  a  State  officer,  why  is  not  his  salary  paid 
by  the  State?  We  do  not  find  any  provision  of  that  kind  in  the 
Constitution ;  whereas  the  Circuit  Court  Judges  receive  their  salary 
from  the  State.  I  find  this:  I  think,  and  I  think  the  majority 
of  the  Convention  will  agree  with  me  that  the  Judges  of  the  County 
Courts  are  county  officers  and  not  State  officers  at  all,  under  this 
Constitution, — that  the  Probate  Court  is  superseded  or  will  be 
superseded  by  the  State  govrnment ;  at  least  the  Committee  took 
that  view  of  the  matter  that  the  Clerk  of  the  Circuit  Court  is  ex- 
officio  Clerk  of  the  County  Court.  The  election  of  these  Judges  was 
provided  for,  but  these  Judges  of  these  courts  are  to  be  provided  ac- 
cording to  the  provisions  of  this  Constitution  with  a  Clerk ; 
he  is  an  officer  distinctively  of  that  Court  and  without  we  provide 
for  that  Clerk,  your  Court  is  incomplete  isn't  it,  under  the  Con- 
stitution? Is  not  that  true?  I  say,  unless  we  provide  for  the  elec- 
tion of  the  Clerk,  having  elected  your  Judges  you  have  not  fully  pro- 
vided for  the  organization  of  these  Courts;  and  not  having  fully 
provided  for  the  organization  of  these  Courts,  then  they  do  not,  and 
cannot  exist  in  their  entirety  as  contemplated  by  the  Constitution. 
They  say  if  we  elect  the  Clerk  of  the  Court  we  have  got  to  go  right 
down  through  the  list  and  elect  all  the  other  county  officers;  that 
is  true,  if  you  can  show  where  these  officers  will  be  superseded  by 
the  State  government;  but  we  find  on  the  contrary,  they  are  con- 
tinued straight  through.  In  fact,  these  officers  are  continued  not 
only  in  power,  but  in  name,  as  existing  under  the  laws  of  the  Ter- 


288  SOUTH  DAKOTA  DEBATES  1889 

ritory ;  the  laws  of  the  Territory  are  continued  right  forward;  noth- 
ing superseded  excepting  those  of  which  it  can  be  said  by  reason 
of  there  being  a  provision  displacing  them,  under  the  State  Con- 
stitution, they  are  superseded;  everything  else  is  continued.  , 

I  turn  to  the  office  of  Sheriff  and  Register  of  Deeds,  but  there 
is  a  difference  between  those  and  the  Clerks  of  the  District  Court. 
That  is  not  an  elective  office  under  our  law  at  all ;  the  Legislature 
passed  an  act  of  that  kind,  or  a  certain  Legislature  did  attempt 
to.  While  that  question  never  went  to  the  Supreme  Court  of  this 
Territory  the  question  was  raised  in  this  very  district ;  the  District 
Court  of  this  District,  I  think  in  this  count}7,  held  that  the  Legis- 
lature had  no  such  power;  at  any  rate  the  question  was  determined 
in  some  of  the  counties  of  South  Dakota ;  we  elected  a  Clerk  of  the 
Dirtrict  Court  in  Pennington  County,  but  by  reason  of  that  decision, 
which  we  obtained,  he  never  qualified  and  the  old  Clerk  went  on 
by  virtue  of  his  appointment.  I  think  from  these  various  pro- 
visions it  will  appear  to  the  Convention  clearly  that  we  should  elect 
all  the  officers  proper  to  be  elected  in  order  to  set  the  State  govern- 
ment in  full  motion  under  Section  9  of  the  Omnibus  Bill.  Com- 
mencing with  line  five  of  Section  9,  "And  the  Representatives  to 
the  Fifty-first  Congress,  together  with  the  Governors  ond  other 
officers  provided  for  in  said  Constitutions  (providing  for  all  four 
States  in  the  act)  may  be  elected  on  the  same  day  of  the  election 
for  the  ratification  or  rejection  of  the  Constitutions ;  and  until  said 
State  officers  are  elected  and  qualified  under  the  provisions  of  each 
Constitution  and  the  States,  respectively,  are  admitted  into  the 
Union,  the  Territorial  officers  shall  continue  to  discharge  the  duties 
of  the  respective  offices  in  each  of  said  Territories".  That  is  they 
may  be  elected  on  that  day  or  they  may  be  elected  on  some  other 
day,  but  they  must  be  elected.  Some  gentlemen  may  contend  that 
there  is  an  appointing  pow-er  somewhere.  Is  there  an  appointing 
power  for  an  elective  office  before  that  office  is  filled  by  an  election? 
There  is  no  such  thing  known  as  a  vacancv  in  an  elective  office  until 
an  election  has  been  had  unless  the  law  provides  that  the  first 
incumbent  can  be  appointed;  you  cannot  have  such  a  thing  as  a 
vacancy  until  an  election  has  been  had.  It  will  be  contended 
perhaps  that  this  same  section  has  a  provision  obviating  the  dif- 
ficulty "until  such  State  officers  are  elected".  It  is  contended  by 
reason  of  that  language  that  our  power  is  confined  to  State  officers 


CLERK  OF  COURTS  289 

only.  It  is  one  of  the  incomprehensible  things  how  anyone  can 
contend  that  that  is  true.  Look  at  the  language  again. 

Mr.  Stroupe  called  to  the  chair  by  the  President. 

Mr.  Wood:  "And  other  officers  provided  for  in  said  Consti- 
tution may  be  elected  on  the  same  day  of  the  election  for  the  rati- 
fication or  rejection  of  the  Constitution".  Now,  they  do  not  con- 
tinue the  discussion  relative  to  the  officers  or  all  of  the  officers 
contained  in  the  first  provision ;  they  are  simply  now  proceeding  to 
define  what  shall  take  place,  or  what  shall  be  done  when  the  States 
arc  admitted,  and  what  shall  be  true  until  they  are  so  admitted; 
they  are  not  limited  in  any  sense,  the  language  is  simple  and  distinct 
that  all  officers  provided  for  in  the  Constiuttion  shall  be  elected, 
and  we  may  provide  for  their  election  at  the  coming  election.  Since 
we  have  provided  for  the  election  of  these  Courts  it  seems  to  me  it 
will  be  our  duty  also  to  provide  for  the  election  of  these  Clerks  be- 
cause until  you  provide  for  the  election  of  these  Clerks  you  cannot 
organize  the  Courts ;  and  until  the  Clerk  is  elected  the  appointing 
power  cannot  be  exercised  because  no  vacancy  can  exist  in  an  elec- 
tive office  until  there  has  been  an  election  unless  the  law  creating 
the  office  provides  the  first  incumbent  may  be  appointed.  Then 
I  say,  there  being  no  such  provision  that  an  incumbent  of  the  office 
of  the  Clerk  of  the  Circuit  Court  can  hold  by  appointment ;  there 
must  be  an  election  before  there  is  any  vacancy  in  that  office.  There 
is  no  doubt  in  my  mind  but  what  the  State  government  will  sup- 
ersede everything  connected  with  the  district  court,  theri  you  will 
not  have  a  Clerk  of  the  Court  at  all ;  he  cannot  hold  over,  he  has  no 
authority  under  the  State  government,  it  all  comes  from  the  Judge, 
not  through  the  people  and  until  you  elect  a  Clerk  you  will  have 
none  and  I  contend  there  is  no  appointing  power  other  than  the 
County  Commissioners  and  they  are  judges  themselves.  The  Cir- 
cuit Judge  might  contend  that  he  had  the  appointing  power,  the 
County  Judge  might  contend  that  HE  had  the  appointing  power, 
and  so  as  well,  the  County  Commissioners  might  contend  that  they 
possessed  the  appointing  power.  You  will  have  a  row  in  every 
county  in  the  State;  there  will  be  a  regular  scramble.  In  some 
localities  they  will  have  a  dispute  as  to  the  appointing  power,  then, 
then  if  we  pass  this  without  providing  for  the  election  of  the  Clerk 
you  will  see  the  magnitude  of  the  error  committed ;  you  will  see  where 
the  critisism  will  fall  and  from  whom;  it  will  lie  all  the  Clerks  and 
everybody  everywhere  and  they  will  say  that  the  Constitution  pro- 


290  SOUTH  DAKOTA  DEBATES,  1889. 

vided  for  the  election  of  the  Judge,  why  didn't  it  provide  for  the 
election  of  a  Clerk  as  well  ? 

Mr.  Sterling:     A  great  deal  of  the  argument  has  turned  upon, 
the  necessity  of  the  election  of  the  Clerk  of  the  Circuit  Court  upon 
the  ground  that  there  will  be  no  person  to  fill  that  position  and  that 
there  is  no  vacancy  that  can  be  filled  by  an  appointment.    This  posi- 
tion was  taken  by  some  of  the  members  of  the  Judiciary  Committee 
and  it  was  insisted  that  that  being  an  elective  office,  no  election 
being  first  held,  the  office  was,  so  to  speak,  not  organized.     There- 
fore there  was  no  vacancy  that  could  be  filled  by  an  appointment. 
On  the  other  hand  it  was  contended  that  the  Constitution  created 
the  office,  that  if  there  was  an  incumbent  in  the  office  there  was  a 
vacancy  and  that  there  was  power  to  fill  that  vacancy  by  appoint- 
ment under  the  Constitution.       I  was  somewhat  surprised  by  the 
position  taken  by  some  of  the  members  of  the  Committee  in  that 
respect.     I  took  a  little  occasion  during  our  adjournment  to  look 
up  upon  that  point  and  as  to  whether  there  was  any  peculiar  mean- 
ing to  that  word  vacancy,  in  this  connection,  which  would  render 
such  an  important  office  as  this  vacant,  because  there  was   no 
election  under  the  Constitution.     In  Dillion  on  Municipal  Corpor- 
ations, Sec.  161  it  is  said  (I  am  just  reading  from  pencil  notes ;  I  will 
refer  later  to  the  decision  that  is  referred  to  in  this  case).     In  this 
case  it  is  said  that  a  resignation  takes  effect  and  vacates  for  all 
time.     "There  is  no  technical  nor  peculiar  meaning  to  the  word 
vacant,  it  means  empty,  unoccupied;  as  applied  to  an  office  without 
an  incumbent.     There  is  no  basis  for  the  distinction  urged  that 
it  applies  only  to  an  office  vacated  by  death,  resignation  or  other- 
wise.    An  existing  office  without  an  incumbent  is  vacant  whether 
it  be  new  or  an  old  one.     A  new  house  is  as  vacant  as  one  tenanted 
for  a  year  which  was  abandoned  yesterday.     We  must  take  the 
words  in  their  usual  plain  sense".     I  am  reading  from  the  case  of 
Stocking  vs.  the  State,  found  in  the  7th  Indiana,  page  326.     I  have 
examined  the  case  since  we  have  convened,  since  recess  today.     It 
was  a  case  where  a  party  was  indicted  for  murder  and  in  a  district 
which  had  been  newly  created.     It  provided  for  the  electing  of  the 
Judge  of  that  district.     There  was  a  failure  to  elect;  there  was  a 
failure  to  even  attempt  an  election  of  Judge  and  under  the  ap- 
pointing power  given,  the  Governor  of  the  State  comes  in  and  fills 
the  vacancy  in  that  office.     The  Judge  was  appointed,  the  man 
was  tried,  these  questions  were  raised  upon  the  trial  of  the  party 


CLERKS  OP  COURT  291 


for  murder.     This  is  word  for  word'  from  a  decision  that  was  ren- 
dered from  the  Supreme  Court  of  the  State  of  Indiana,  and  there  is 
an  Indiana  case  following  this  which  is  precisely  similiar.     A  case 
where  election  was  provided  by  General  Assembly.     The  General 
Assembly  did  not  elect,  the  Governor  filled  the  office  by  appointment. 
Now,  is  there  any  right  to  fill  this  office  of  Circuit  Clerk  by  appoint- 
ment ?     I  say  that  there  can  be  no  question  absolutely  but  what  there 
is  a  vacancy.     Sec.  37,  of  Article  V,  provides:     "All  officers  pro- 
vided for  in  this  Article  shall  respectively  reside  in  the  district, 
county,  precinct,  city,  or  town  for  which  they  may  be  elected  or 
appointed.     Vacancies  in  the  elective  offices  provided  for  in  this 
Article  shall  be  filled  by  appointment  until  the  next  general  election, 
as  follows:     All  Judges  of  the  Supreme,  Circuit  and  County  Courts 
by  the  Governor.     All  other  judicial  and  county  officers  by  the 
County  Board  of  the  county  where  the  vacancy  occurs ;  in  case  of 
Police  Magistrates,  by  the  municipality."     There  is  other  authority 
for  the  election  of  the  County  Judge  at  this  particular  time  than  is 
found  in  Section  37.     It  is  said  because  this  officer  is  appointed  by 
the  Governor  that  he  is  a  State  officer,  that  as  the  Omnibus  Bill 
authorizes  the  election  of  State  officers,  that  the  County  Judge  being 
a  State  officer  may  be  elected  now.     Section  26,  of  the  same  Article 
V,  provides  that  the  Judges  of  the  Supreme  Court,  County  Court 
and  Circuit  Courts  shall  be  chosen  at  the  first  election  held  under 
the  provisions  or  this  Constitution.     So  I  contend  that  the  makers  of 
this  Constitution  plainly  contemplated  the  election  of  the  County 
Judges  as  wrell  as  the  Supreme  and  Circuit  Judges  at  the  first  election 
held  under  the  provisions  of  this  Constitution.     Now,  gentlemen 
say  that  because  we  are  authorized  under  the  Omnibus  Bill  to  elect, 
what?     Not  all  the  officers  as  the  gentleman  said,  provided  in  the 
Constitution,  that  is  not  in  the  Omnibus  Bill  respect  of  all  officers 
necessary  for  a  full  State  government.     Now  when  they  made  this 
Constitution  and  provided  for  the  election  of  officers  at  particular 
times  the  makers  of  the  Constitution  knew,  and  I  do  not  believe 
Congress  intended  to  indicate  with  any  uncertain  tone  what  they 
knew.     They  knew  all  officers  would  be  necessary  to  carry  on  State 
government;  they  had  in  mind  that  if  there  was  a  vacancy  in    this 
office  of  County  Judge  that  it  would  be  filled  by  the  Board  of  county 
Commissioners ;  they  provided  all  the  other  county  officers  should 
be  elected  when?  Not  under  the  provisions  of  the  Constitution  when 
they  got  a  case  in  the  Courts,  but  at  the  first  general  election  held 


292  SOUTH  DAKOTA  DEBATES  1889 

after  the  admission  of  the  State  into  the  Union.  These  different 
county  officers  should  be  elected.  So  I  think,  Mr.  Chairman,  that 
there  is  in  the  first  place  under  this  Constitution,  no  authority  for 
the  election  of  the  Circuit  Clerk,  we  have  no  warrant  for  it  and  I 
think  in  the  second  place  that  there  is  no  necessity  for  it. 

Mr.  Jolley:  So  far  as  the  Omnibus  Bill  is  concerned  I  do  not 
think  that  Mr.  Springer  or  anyone  else  who  had  that  measure  under 
consideration  got  so  far  down  in  elective  officers  as  to  provide  for 
the  election  of  county  officers.  All  that  they  did  provide  for  was 
the  State  officers.  So  far  as  the  argument  made  by  the  gentleman 
from  Pennington  is  concerned,  while  very  ingenius  and  presented 
in  a  very  able  manner,  falls  flat.  His  premises  are  not  correct. 
There  is  now,  and  will  be  until  we  are  admitted  under  this  Consti- 
tution, if  we  are  admitted  under  it,  a  provision  by  which  the  Clerks 
of  Court  can  be  appointed  in  the  several  counties  in  this  Territory 
by  Judges  of  the  District  Court.  They  are  now, 
they  will  remain  there  until  we  are  admitted  as  the 
State  of  South  Dakota  under  this  Constitution, 
that  is  the  District  Courts  of  the  Territory  of  Dakota.  And  just 
as  soon  as  we  are  admitted  under  this  Conststution,  if  we  are 
admitted,  the  provisions  for  these  changes  under  the  provisions 
of  the  Constitution  are  amply  full  and  complete  as  to  what  course 
shall  be  with  reference  to  the  office  of  Clerk  of  the  Court  and  there 
is  no  doubt,  not  any  ambiguity  as  to  how  that  officer  shall  be  ap- 
pointed and  what  his  powers  are.  Sec.  32  read:  "There  shall 
be  a  Clerk  of  the  Circuit  Court  in  each  organized  county,  who  shall 
also  be  Clerk  of  the  County  Court,  and  who  shall  be  elected  by 
the  qualified  electors  of  such  county.  The  duties  and  compensation 
of  said  Clerk  shall  be  as  provided  by  law  and  regulated  by  the  rules 
of  the  Court  consistent  with  the  provisions  of  law."  Under  this 
Constitution  we  are  attempting  to  thrust  the  provisions  in  Sec. 
32  that  there  shall  be  a  Clerk  of  the  District  Court  that  shall  be 
elected  by  law.  If  the  position  taken  by  the  gentleman  from  Pen- 
nington is  tenable  then  you  have  here  a  rule  by  which  you  can  de- 
ceive the  will  of  the  people  and  do  great  injustice  as  long  as  you  see 
fit  to  do  so.  Why?  It  is  soberly  contended  that  before  there  is  a 
vacancy  in  any  office  created  by  law,  there  must  be  an  incumbent 
to  fill  that  office.  Taking  that  rule,  where  are  we?  Supppose  at 


CLERKS  OF  COURT  293 


the  next  general  election  we  had  elected  a  gentleman  as  Governor 
of  this  Territory  before  the  State  is  admitted.  This  Governor  dies, 
there  is  no  vacancv  in  that  office  and  it  can  not  be  filled,  according 
to  the  proposition  laid  down  by  the  gentleman  from  Pennington, 
before  that  Governor  has  been  sworn  in,  that  then  there  becomes  a 
vacancy  and  then  can  it  be  filled.  It  must  necessarily  be  a  vacancy, 
his  office  is  created,  at  the  same  time  the  duties;  there  is  a  vacancy 
in  that  office;  that  is  law.  To  show  what  the  intention  of  the 
framers  of  this  Constitution  was,  Sec.  5  of  Art.  IX  reads:  "In  each 
organized  county,  at  the  first  election  held  after  the  admission  of 
the  State  of  Dakota  into  the  Union,  and  every  two  years  thereafter, 
there  shall  be  elected  a  Clerk  of  the  Court,  Sheriff,  County  Auditor, 
Register  of  Deeds,  Treasurer,  States  Attorney,  Surveyor,  Coroner, 
and  Superintendent  of  Schools,  whose  term  of  office,  respectively 
shall  be  two  years,  and  except  the  Clerk  of  the  Court,  no  person 
shall  be  eligible  for  more  than  four  years  in  succession  to  any  of 
of  the  above  named  offices.  This  Constitution  by  Sec.  32  says, 
Art.  V  says:  "There  shall  be  a  Clerk  of  the  Circuit  Court  in  every 
organized  county,  who  shall  also  be  Clerk  of  the  County  Court,  and 
who  shall  be  elected  by  the  qualified  electors  of  such  county.  The 
duites  and  compensation  of  said  Clerk  shall  be  as  provided  by  law 
and  regulated  by  the  rules  of  the  Court  consistent  with  the  pro- 
visions of  law."  Sec.  5,  Art.  9,  says  that  we  shall  not  elect  the 
Clerk  until  the  first  election  after  we  are  admitted  as  a  State  under 
this  Constitution.  Sec.  37  says,  as  read,  that  where  there  is  a  va- 
cancy in  the  county  offices  that  that  office  shall  be  filled  by  the 
County  Commissioners.  What  can  be  more  plain,  clear  and  dis- 
tinct than  that?  That  there  must  be,  just  as  quick  as  we  are  ad- 
mitted, the  office  of  the  Clerk  of  the  Circuit  Court  and  we  are  pro- 
hibited by  this  Constitution  from  electing  a  Clerk  of  the  Circuit 
Court  until  the  first  election  after  we  are  admitted,  into  the  Union 
That  instead  of  making  these  acts  conflict  by  electing  a  clerk  of  the 
Court  would  but  just  add  to  the  complication.  There  is  no  court 
in  Christendom  could  take  that  to  be  the  law.  plain  in  its  details  in  the 


294  SOUTH  DAKOTA  DEBATES  1889 

place  of  an  act  which  would  fly  in  the  teeth  and  eyes  of  this  Con- 
stitution, and  against  the  rules  laid  down  by  it.  No  sir,  the  Con- 
stitution says  there  shall  tm  a  Clerk  of  the  Court  and  the  Constitu- 
tion says  we  cannot  elect  that  Clerk  of  the  Court  until  the  general  elec- 
tion after  we  are  admitted  into  the  Union  under  this  Constitution. 
And  the  Constitution  further  says  that  where  there  is  a  vacancy  in 
the  county  offices  it  shall  be  filled  by  the  Board  of  County  Com- 
missioners and  that  is  all  it  says.  It  is  plain  and  clear. 

Mr.  Sherwood:     I  desire  to  add  one  or  two  points  to  those  of 
the  gentleman  from  Pennington;  I  think  that  we  have  a  right  to 
elect  a  Clerk  of  the  Court.      I  apprehend  that  the  only  question  at 
issue  here  is  the  question  of  power.     I  do  not  think  there  will  be 
any  doubt  among  the  majority  of  this  Convention  as  to  the  ex- 
pediency or  necessity  of  it.     I  desire  to  call  attention  to  the  re- 
marks of  the  gentleman  from  Spink  in  the  case  which  he  read.     In 
relation  to  election  under  the  Constitution,  I  desire  to  say  that  the 
election  on  the  1st  day  of  October  next  is  not  under  this  Constitution. 
When  the  Constitution  of  1885  was  adopted,  all  the  powers  granted 
were  the  powers  grant'ed  under  this  Constitution.     Today  we  stand 
in  a  different  position.     The  powers  we  are  moving  under  are  the 
powers  that  eminate  from  Congress.     Referring  to  Article  24  of 
said  Omnibus  Bill  does  it  not  provide  in  terms  that  all  officers 
provided  for  under  said  Constitution  might  be  elected  ?     I  desire  to 
read  a  portion  of  Sec.  9:     "Representatives  to  the  Fifty-first  Con- 
gress together  with  Governors  and  other  officers  provided  for  in 
this  Constitution."     Now,  in  so  many  words  it  says  "All  other  of- 
ficers provided  for  in  this  Constitution".     Either  those  words  mean 
nothing  or  they  mean  something.     "The  other  officers."     No  one 
will  contend  for  a  moment  but  what  the  Clerk  of  the  Court  is  one 
of  the  other  officers,  provided  for  under  this  Constitution,  expressly 
is  designated  as  one  of  the  officers  provided  for  under  this  Consti- 
tution.    Now  I  say  that  these  words  mean  something  or  they  mean 
nothing.     I  desire  to  say  further  that  the  power  to  elect  these  var- 
ious officers  carries  with  it  the  power  to  provide  for  their  election; 
that  is  the  common  rule  in  relation  to  the  interpretation  of  statutes. 


CLERKS  OF  COURT  295 


That  must  not  be  interpreted  as  follows:  The  intent  of  the  statutes 
indicated  by  the  framers  of  it  must  be  taken  into  consideration  so,  if 
possible,  to  give  a  meaning  to  all  portions  of  the  statute.  Now, 
to  give  it  the  interpretation  that  has  been  given  it  here  today  wipes 
out  Sec.  9  and  leaves  Sec.  24  intact.  Interpreted  as  we  interpret  it 
blends  Sees.  9  and  24  and  gives  power  to  elect  all  of  the  State 
officers. 

Mr.  Sterling:  I  stand  corrected  as  to  he  words  of  the  Omnibus 
Bill.  I  contend  that  that  subject,  the  election  of  officers  provided 
for  under  this  State  Constitution  must  be  construed  in  reference  to 
the  Constitution  itself  at  the  times  of  the  election  provided  for  in 
the  Constitution  and  that  by  instructing  this  Convention  to  re- 
submit  this  Constitution  to  the  people  they  said,  or  expressed  the 
meaning  that  the  Clerks  of  the  Court  shall  not  be  elected. 

(Calls  of  question  from  all  over  the  house.) 

Mr.  Willis:  I  am  beginning  to  conclude  that  we  who  are  not 
lawyers  cannot  stand  much  more  information  on  this  subject. 
I  am  about  the  opinion  of  the  old  lady,  that  she  believed  the  Scrip- 
tures would  still  throw  some  light  on  this  subject ;  I  shall  begin  to 
make  a  speech  probably  myself,  if  this  continues. 

(Calls  of  question.) 

Mr.  President:  The  question  is  upon  the  amendment  of  Mr. 
Woods,  of  Pennington. 

Mr.  Sherwood:     I  call  for  the  reading  of  the  amendment. 

Mr.  Williams:  I  will  read  it:  "That  Section  5  be  amended 
after  the  word  'State'  in  the  fourth  line  of  the  7th  paragraph  by 
inserting  the  words  'and  county'  and  at  the  end  of  paragraph  8 
of  Section  5,  add  the  words  'and  Clerk  of  Circuit  Court.'  " 

The  question  on  the  amendment  reaching  a  vote  resulted  as 
follows:  Ayes  22;  nays  39.  The  motion  was  declared  lost,  by 
the  President,  the  following  gentlemen  voting  aye:  Messrs.  Atkin- 
son, Boucher,  Clough,  Cook,  Davies,  Fowles  Goddard,  Hall,  Hen- 
ninger,  Huntley,  Humphrey,  Matson,  McFarland,  O'Brien,  Peck, 
Sherwood,  Smith,  Spooner,  Williams,  Wood  of  Pennington,  Zitka, 
and  Mr.  President.  22.  And  the  following  gentlemen  voting  nay 
Anderson  ,Berdahl,  Beuchler,  Coats,  Cooper,  Corson,  Couchman, 
Craig,  Dickinson,  Diefendorf,  Downing,  Eddy,  Edgerton  of  Yank  ton, 
Fellows,  Gilford,  Hartley,  Hole,  Houlton,  Jolley,  Kimball,  Lee, 
Lyons,  Ramsey,  Ringsrud,  Scollard,  Stoddard,  Sterling,  Stroupe, 


296  SOUTH  DAKOTA  DEBATES  1889 

Thompson,  Van  Buskirk,  Van  Eps,  Van  Tassel,  Wescott,  Wheeler, 
Whitlock,  Willis,  Williamson,  Wood  of  Spink,  Young.  39. 

Mr.  President:  The  question  now  stands  upon  the  adoption 
of  Section  5. 

Mr.  Humphrey:  I  would  call  attention  to  the  last  two  par- 
agraphs of  the  section,  the  last  two  paragraphs  but  one,  the  para- 
graph beginning  "if  it  shall  appear".  The  last  clause  of  that  par- 
agraph, the  last  clause  of  the  next,  it  seems  to  me,  that  they  are 
superfluous.  I  would  not  move  that  they  be  expunged,  but  I  call 
attention  of  the  Chairman  of  the  Committee  and  if  he  thinks  they 
are  nesessary  there  I  do  not  object  absolutely. 

The  Chairman:  The  motion  is  upon  the  adoption  of  Sec.  5. 
As  many  as  are  in  favor  will  say  aye.  The  ayes  seem  to  have  it ; 
the  ayes  have  it.  Section  5  is  adopted.  The  Clerk  reads  Sec.  6 
as  follows: 

Sec.  6.  At  the  same  time  and  places  of  election,  there  shall 
be  held  by  said  qualified  electors  an  election  for  the  place  of  tem- 
porary seat  of  government. 

On  each  ballot,  and  on  the  same  ballot,  on  which  are  the  matters 
voted  for  or  against,  as  hereinbefore  provided,  shall  be  written  or 
printed  the  words,  "For  temporary  seat  of  government." 

(Here  insert  the  name  of  the  city,  town  or  place  to  be  voted  for.) 

And  upon  the  canvass  and  return  of  the  vote,  made  and  as 
hereinafter  provided  for,  the  name  of  the  city,  towTn  or  place, 
which  shall  have  received  the  largest  number  of  votes  for  said 
temporary  seat  of  government,  shall  be  declared  by  the  Governor, 
Chief  Justice  and  Secretary  of  the  Territory  of  Dakota,  or  by  any 
two  of  them  at  the  same  time  that  they  shall  canvass  the  vote  for 
or  against  the  Constitution,  together  with  the  whole  number  of 
votes  cast  for  each  city,  town  or  place,  and  the  officers,  above  nanjed, 
shall  immediately  after  the  result  of  said  election  shall  have  been 
ascertained,  issue  a  proclamation  directing  the  Legislature  elected 
at  said  election,  to  assemble  at  the  said  city,  town,  or  place  so 
selected,  on  the  day  fixed  by  this  Schedule  and  Ordinance. 

Mr.  Hole:     I  move  the  adoption  of  Section  6,  as  read. 

This  motion  received  a  second. 

The  President:  The  question  is  upon  the  adoption  of  Sec.  6. 
As  many  as  are  of  the  opinion  that  the  motion  prevail,  say  aye. 
The  ayes  have  it ;  Section  6  is  adopted. 

The  Clerk  reads  Section  7. 


AUSTRALIAN  BALLOT  297 

Section  7.  The  election  provided  for  herein  shall  be  under 
the  provisions  of  the  Constitution  herewith  submitted,  and  shall  be 
conducted,  in  all  respects,  as  elections  are  conducted  under  the  gener- 
al laws  of  the  Territory  of  Dakota,  except  as  herein  provided.  No 
mere  technicalities  or  informalities,  in  the  manner  of  form  of  election, 
or  neglect  of  any  officer  to  perform  his  duty  with  regard  thereto, 
shall  be  deemed  to  vitiate  or  avoid  the  same,  it  being  the  true  intent 
and  object  of  this  ordinance  to  ascertain  and  give  effect  to  the  true 
will  of  the  people  of  the  State  of  South  Dakota,  as  expressed  by  their 
votes  at  the  polls. 

Mr.  Peck:  I  ask  the  Clerk  to  read  my  motion  which  he  has 
possession  of. 

The  Clerk  reads:  "That  Section  7  of  the  report  of  the  Com- 
mittee on  Schedule  and  Ordinance  be  stricken  out  and  the  following 
be  inserted  in  lieu  therefore: 

RULES  REGULATING  THE  ELECTION  TO  BE  HELD  UNDER  THE  AU- 
THORITY OF  THE  ENABLING  AOT  FOR  THE  ADOPTION  OR  REJEC- 
TION OF  THE  CONSTITUTION  AND  THE  ARTICLES  SEPARATELY 
SUBMITTED  THEREWITH  AND  THE  REPRESENTATIVES  IN  CON- 
GRESS; ALSO  STATE  AND  JUDICIAL  OFFICERS  FOR  SOUTH  DA- 
KOTA. 

SECTION  1.  That  at  the  election  to  be  held  on  the  first  day  of 
October,  1889,  the  election  laws  now  in  force  in  the  Territory  of 
Dakota  shall  apply  to  and  govern  such  election  except  as  herein- 
after specially  provided. 

SEC.  2.  Nominations  for  State  officers,  Representatives  in 
Congress  and  Judges  of  the  Supreme  Court  shall  be  made  by  any 
State  Convention  and  certified  to  by  the  Chairman  and  Secretary 
of  such  Convention,  according  to  form  number  one  (1)  hereinafter 
provided,  or  by  any  three  hundred  (300)  legal  voters  in  South  Da- 
kota attaching  their  names  to  a  paper  nominating  candidates  and 
filing  the  same  with  the  Territorial  Secretary. 

SEC.  3.  Nominations  for  members  of  the  State  Legislature, 
Judges  of  the  Circuit  Court  and  Judges  of  the  County  Courts,  shall 
be  made  by  any  Convention  held  in  legislative  and  judicial  distri'  ts 
or  county  for  which  any  such  officer  is  to  be  elected,  and  certified  to 
by  the  Chairman  and  Secretary,  according  to  form  No.  2  hereinafter 
prescribed,  or  by  anyone  hundred  legal  voters  of  any  legislative 
or  judicial  district  or  count  \  .  by  attaching  their  names  to  a  paper 
nominating  such  officers,  and  filing  the  same  with  the  County  Clerk 
or  County  Auditor  to  which  such  nominations  refer. 

SEC.  4.  All  certificates  of  nominations  and  nominating  papers 
provided  for  in  Section  two  (2)  shall  be  filed  with  the  Territorial 
Secretary  by  the  fifteenth  day  of  Septcmper,  and  all  those  provided 


298  SOUTH  DAKOTA  DEBATES  1889 


for  in  Section  three  (3)  shall  be  filed  with  the  County  Clerk  or 
County  Auditor  by  the  twentieth  day  of  September,  1889,  and  no 
certificate  of  nomination  or  nominating  papers  shall  be  acted  upon 
except  accompanied  with  the  consent  in  writing  of  the  persons  or 
persons  therein  nominated,  provided  that  in  case  of  death  or  resig- 
nation, the  authority  making  such  nomination  shall  be  permitted 
to  fill  such  vacancy  by  a  new  nomination. 

SEC.  5.  The  Territorial  Secretary,  on  the  receipt  by  him  of 
the  nominating  papers  hereinbefore  mentioned,  shall  forthwith 
transmit  true  copies  of  the  same  to  the  County  Clerks  or  County 
Auditors  of  the  several  counties  in  South  Dakota. 

Sec.  6.  The  County  Clerk  or  County  Auditor  shall,  after  the 
expiration  of  the  time  for  receiving  the  nominating  papers,  forth- 
with cause  to  be  printed  such  a  number  of  ballot  papers  as  will 
be  sufficient  for  the  purpose  of  the  election  and  the  number  necessary 
for  each  polling  place  shall  be  bound  or  stitched  in  a  book  of  con- 
venient form,  and  the  County  Clerk  or  County  Auditor  shall  cause 
to  be  printed  in  English,  in  large  type,  on  cards,  instructions  for 
the  guidance  of  voters  in  preparing  their  ballot  paper;  such  clerk 
or  auditor  shall  furnish  ten  copies  of  such  instructions  to  the  Judges 
of  each  election  precinct,  and  said  Judges  shall  cause  them  to  be 
posted  both  inside  and  outside  of  the  polling  place,  and  said  County 
Clerk  or  County  Auditor  shall  as  provided  by  law,  cause  to  be  de- 
livered to  the  proper  judges  of  election  the  ballot  box  and  all  poll 
books  and  returns  now  by  law  required  or  by  this  ordinance  re- 
quired to  conduct  and  complete  the  election,  also  the  ballot  papers, 
at  least  two  (2)  days  before  polling  the  vote;  and  shall  cause  to  be 
published  in  each  newspaper  in  the  county  a  true  copy  of  the  ballot 
paper  and  card  of  instructions,  said  publication  to  be  in  the  last 
issue  of  said  papers  before  the  day  of  voting. 

SEC.  7.  Every  ballot  paper  shall  contain  the  names  of  all 
candidates  for  Representatives  in  Congress,  State  and  Judicial 
officers,  and  members  of  the  Legislature,  and  the  name  of  the 
political  party  to  which  each  candidate  belongs;  also  the  form  of 
ballot  for  the  adoption  or  rejection  of  the  Constitution  and  the 
Articles  separately  submitted  therewith  as  provided  in  this  ordi- 
nance. 

SEC.  8.  Each  polling  place  shall  be  furnished  with  a  suf- 
ficient number  of  compartments,  in  which  the  voter,  screened  from 
observation,  shall  mark  his  ballot  paper,  and  a  guard  rail  so  con- 
structed that  only  persons  within  such  rail  can  approach  within 
ten  (10)  feet  of  the  ballot  box,  and  it  shall  be  the. duty  of  the  judges 
of  election  in  each  polling  place  to  see  that  a  sufficient  number  of 
such  places  be  provided  and  shall  appoint  a  person  to  guard  the 
entrance  to  such  compartments  and  he  shall  be  paid  the  same  as 
the  judges  of  election. 

SEC.  9.  The  voters  being  admitted  one  at  a  time  for  each  com- 
partment where  the  poll  is  held  shall  declare  his  name,  and  when  per- 


AUSTRALIAN  BATTOT  299 

mitted  by  the  judges  to  vote  his  name  shall  be  enterted  on  the  voter's 
list,  and  he  shall  receive  from  one  of  the  judges  of  election  a  ballot 
paper  on  the  back  of  which  the  initials  of  one  of  the  judges  of  elec- 
tion shall  be  so  placed  that  when  the  ballot  paper  is  folded  they 
can  be  seen  without  opening  it,  and  the  judges  of  election  shall  in- 
struct him  how  to  mark  his  ballot  paper. 

SEC.  10.  The  voter,  on  receiving  his  ballot  paper,  shall  forth- 
with proceed  to  one  of  the  compartments  of  the  polling  station 
and  there  without  undue  delay,  not  exceeding  five  minutes,  mark 
his  ballot  paper  by  putting  a  cross  (X)  in  the  space  to  the  right- 
hand  side  of  the  name  of  the  person  for  whom  he  desires  to  vote  and 
if  he  desires  to  vote  for  any  person  whose  nome  is  not  on  his  ballot 
paper  he  may  write  or  paste  on  his  ballot  paper  the  name  of  the 
person  for  whom  he  desires  to  vote,  and  shall  then  fold  up  his  ballot 
paper  so  that  the  initials  on  the  back  can  be  seen  without  opening, 
and  hand  it  to  one  of  the  judges,  who  shall,  without  opening  it 
ascertain  that  the  initials  are  on  it,  and  that  it  is  the  same  ballot 
paper  given  to  the  voter,  and  shall  the  place  it  in  the  ballot  box 
and  the  voter  shall  quit  the  polling  compartment  as  soon  as  his 
ballot  paper  has  been  put  in  the  ballot  box. 

SEC.  11.  The  judges  of  election,  on  the  application  of  any 
voter  who  is  xinable  to  vote  in  any  manner  provided,  shall  assist 
such  voter  by  marking  his  ballot  paper  in  the  manner  desired  by 
such  voter  in  thepresenceof  the  persons  permitted  to  be  in  the  com- 
partment occupied  by  the  judges  and  no  others,  and  shall  place  such 
ballot  paper  in  the  ballot  box,  and  when  the  judges  of  election  shall 
not  understand  the  language  spoken  by  the  voters  claiming  to  vote, 
they  shall  swear  an  interpreter,  who  shall  be  the  means  of  commun- 
ication between  them  and  the  voter  with  reference  to  all  matters 
required  to  enable  such  voter  to  vote. 

SEC.  12.  A  voter  who  has  inadvertently  dealt  with  the  ballot 
paper  given  him  in  such  a  manner  that  it  cannot  be  conveniently 
used,  may,  on  delivering  the  same  to  the  judges  obtain  another 
ballot  paper  in  place  of  that  so  delivered  up. 

SEC.  13.  Any  voter  refusing  to  take  the  oath  or  affirmation 
of  qualification  as" required  by  law,  when  requested  so  to  do,  shall 
not  receive  a  ballot  paper  or  be  permitted  to  vote. 

SEC.  14.  No  person  shall  be  allowed  to  take  his  ballot  paper 
out  of  the  polling  place,  nor,  except  as  in  case  provided  for  by  Section 
Eleven  (11),  to  show  it  when  marked  to  any  person  so  as  to  allow 
the  name  of  the  candidate  for  whom  he  has  voted  to  be  known,  and 
any  voter  who  violates  or  refuses  to  comply  with  this  ordinance 
shall  not  be  permitted  to  vote. 

SEC.  15.  In  addition  to  the  judges  and  elerks  of  election  one 
watcher  at  each  polling  precinct  for  each  political  party  ]>iv><.  ntin.u 
a  candidate  or  candidates  for  the  suffrage  of  the  voters  and  no  other 
person  shall  be  permitted  in  the  compartment  occupied  by  the 
judges  on  election  day,  and  such  judges,  clerks  and  \vatehers  shall, 


300  SOUTH  DAKOTA  DEBATES  1889 

before  entering  upon  thier  respective  duties  take  and  subscribe  to 
the  following  oath  or  affirmation: 

I,  John  Jones,  do  solemnly  swear  (or  affirm)  that  I  will  keep 
secret  the  names  of  candidates  for  whom  any  voter  may  have  marked 
his  ballot  paper  in  my  presence  at  this  election,  so  help  me  God. 

SIGNED:  J.  J. 

Sworn  or  affirmed  before  me  at this  first  day  of 

October,  1889. 

Justice  of  the  Peace  or  Judge  of  Election. 

SEC.  16.  Immediately  on  the  close  of  the  poll  the  judges 
in  the  presence  of  the  clerks  of  election  and  such  of  the  wratchers 
and  voters  as  desire  to  be  present,  shall  open  the  ballot  box  and 
proceed  to  count  the  number  of  votes  for  each  candidate ;  in  doing 
so,  they  shall  reject  all  ballot  papers  which  have  not  been  supplied 
by  them  as  judges  of  election,  all  ballots  by  which  more  candidates 
have  been  voted  for  than  there  are  officers  to  be  elected ;  also  those 
upon  which  there  is  any  writing  or  mark  by  which  the  voter  can 
be  identified;  all  the  ballots  voted  and  counted,  and  those  rejected, 
those  spoiled,  and  those  unused,  shall  be  put  into  separate  envel- 
opes and  all  these  parcels  shall  be  endorsed  so  as  to  indicate  their 
contents,  and  be  placed  in  the  ballot  box  and  a  return  of  the  result 
of  the  election  at  the  polling  precinct  shall  be  made  to  the  County 
Clerk  or  the  County  Auditor,  as  now  required  by  law  for  the  election 
of  members  of  the  Territorial  Legislature. 

SEC.  17.  All  expense  incurred  under  these  rules  to  be  a  charge 
against  the  county  and  audited  and  paid  as  other  claims  against 
the  county. 

Mr.  Hole:  I  think  that  that  doe*  rot  provide  for  things  that 
we  must  provide  for.  I  think  if  that  is  added  to  Section  7  there 
will  be  no  conflict.  This  was  made  up  with  a  view  of  and  expecting 
that  that  would  be  attached,  but  if  you  make  that  take  the  place 
of  Section  7  it  does  not  provide  for  what  we  must  provide  for,  but 
if  you  make  that  as  an  amendment  to  it  then  it  comes  before  the 
Convention  in  a  way  that  it  can  be  discussed  intelligently. 

Mr.  Peck:  I  have  no  choice  whether  it  is  added  to  the  end 
of  Section  7  or  takes  the  place  of  Section  7,  no  particular  choice 
as  long  as  it  goes  through. 

The  President:  Do  you  make  this  as  an  amendment  to  be 
added  to  Section  7 ?  Or  is  it  a  substitute? 

Mr.  Peck:  If  it  be  thought  desirable  to  retain  Section  7,  I 
do  not  care  about  informalities  and  have  no  objection  that  it  be 
added  to  Section  7  as  an  amendment. 

Mr.  Scollard:     I  move  it  be  laid  on  the  table. 

Mr.  Jolley:     Oh,  no! 


AUSTRALIAN  BALLOT  301 

Mr.  Hole:  I  have  no  right  on  the  floor  but  to  consider  this 
matter  in  the  Committee  Conference.  This  is  a  question  upon 
which  we  all  can  honestly  differ  and  I  ask  as  a  favor,  and  I  think 
I  express  the  wish  of  every  one  of  the  Executive  Committee  that 
that  motion  might  be  withdrawn. 

Mr.  Scollard:  I  think,  Sir,  that  this  Committee  is  entitled  to 
as  much  courtesy  as  any  other  that  has  been  appointed  by  the 
President  of  the  Convention  and  this  matter  came  up  before  the 
Committee  and  was  voted  down  unanimously. 

(Voices  of  No,  No  No.) 

Mr.  Scollard:  You  will  have  the  floor  after  I  get  through, 
if  you  please.  I  think,  as  a  matter  of  right,  that  this  matter  ought 
to  be  laid  on  the  table.  It  don't  belong  to  this  Committee  after  it 
was  voted  down.  I  therefore  submit  it  to  the  Convention  again, 
that  this  amendment  should  be  tabled. 

The  Chairman:  It  has  been  moved  and  seconded  to  lay  the 
amendment  on  the  table. 

(Calls  for  ayes  and  noes.) 

The  President:  Those  who  are  in  favor  of  laying  the  amend- 
ment upon  the  table  will  vote  aye ;  those  opposed  vote  no. 

The  ballot  resulted  as  follows: 

Those  voting  aye:     Messrs.  Buechler  and  Scollard.      (2). 

Those  voting  nay:  Messrs.  Anderson,  Atkinson,  Berdahl, 
Boucher,  Clough,  Coats,  Cook,  Corson,  Couchman,  Craig,  Davies, 
Dickinson,  Diefendorf.  Downing,  Eddy,  Edgerton  of  Yankton, 
Fellows,  Fowles,  Gifford,  Goddard,  Hall,  Hartley,  Henninger,  Hole, 
Houlton,  Huntly.  Humphrey,  Jolley,  Kimball,  Lee,  Lyons,  Mafson, 
McFarland,  O'Brien,  Peck,  Ramsey,  Ringsrud,  Sherwood,  Smith 
Spooner,  Stoddard,  Sterling,  Stroupe,  Thompson,  Van  Buskirk, 
Van  Eps,  Van  Tassel,  Wescott,  Wheeler,  Whitlock,  Willis,  Williams. 
Williamson,  Wood  of  Spink,  Young,  Zitka  and  Mr.  President.  (57). 

The  President  announced  the  result  of  the  ballot,  two  voting 
aye,  and  fifty-seven  voting  nay. 

Mr.  Peck:  I  move  that  Section  7  of  the  report  of  the  Com- 
mittee on  Schedule  <  nd  Ordinance  be  amended  by  adding  the  fol- 
lowing thereto,  that  the  amendment  last  read  by  the  Clerk  be  added 
as  a  paragraph  to  Sec.  No.  7. 

Mr.  Hole:  I  do  not  wish  to  discuss  this  question  more  than 
just  to  say  that  it  was  decidedly  the  understanding  and  expectation 
in  the  Committee  that  this  should  come  before  this  Convention. 
I  think  it  is  fair  that  this  should  be  considered  as  an  original  ques- 


302  SOUTH  DAKOTA  DEBATES  1889 

tion  here  without  being  prejudiced  in  any  manner  by  any  action 
that  the  Committee  may  have  taken. 

Mr.  Van  Buskirk:  I  don't  know  at  this  present  time  the  ef- 
fect of  adding  this  as  a  section.  I  would  like  to  call  attention  at 
this  time  so  that  it  would  not  control  some  future  additions  that  I 
would  make  to  it. 

Mr.  Hole:  Would  you  allow  me  one  suggestion?  Why  not 
just  number  this  Section  7  a  sub-section? 

Mr.  Van  Buskirk:  I  will  call  the  attention  of  the  Convention 
to  a  few  suggestions  which  have  been  overlooked.  For  instance, 
Sec.  2.  Nominating  State  officers,  Representatives  in  Congress, 
and  Judges  of  the  Supreme  Court  shall  be  made  by  any  State  Con- 
vention and  certified  to  by  the  Chairman  and  Secretary  of  such 
Convention.  After  this  wTord  Convention""  I  would  insert  the 
word  "substantially  '  so  that  it  would  not  stand  to  be  a  tech- 
nicality, and  every  member  of  the  Committee  that  I  have  had  an 
opportunity  to  confer  with  they  conceded  that  it  would  be  proper. 
We  read  a  little  further  "Or  by  any  three  hundred  legal  voters  in 
South  Dakota  attaching  their  names  to  a  paper'  .  Now,  there 
might  be  three  or  four  of  them  circulated  with  the  same  proposition. 
I  would  say  "paper  or  papers" ;  it  seems  that  that  ought  to  go  in. 
Then  passing  from  that  down  to  Section  3 ,  nominations  for  members 
of  the  State  Legislature,  Judges  and  Clerks  of  the  Circuit  Court. 
I  would  suggest  to  strike  that  out. 

Mr.  Peck:     Yes,  Sir.     Exactly. 

Mr.  Van  Buskirk:  We  look  a  little  further  down — I  would 
insert  the  word  "substantially"  and  following,  in  the  third  line  from 
the  bottom,  where  they  say  "paper"  I  would  say  "papers."  In 
view  of  the  fact  that  the  election  comes  on  the  first  day  of  October, 
the  inquiry  arises  in  my  mind  whether  that  would  be  time  enough 
for  the  Secretary  of  the  Territory  to  get  those  returns  that  would 
come  to  him  to  be  sent  back,  counted. 

Mr.  Peck:  I  simply  put  it  there  that  we  might  note  it;  they 
can  fix  it  as  they  see  fit. 

Mr.  Van  Buskirk:  Passing  that  I  would  desire  to  suggest 
in  view  of  the  legislation  that  will  take  place  in  other  localities  upon 
that  subject,  I  don't  know  whether  that  would  be  a  subject  for  this 
Convention  to  investigate,  the  Judges  and  Clerks  of  Courts  shall  be 
chosen  from  the  district  political  parties,  they  are  of  course  pro- 
vided for 


AUSTRALIAN  BALLOT  303 


Mr.  Peck:  Allow  me  to  make  one  little  suggestion.  What 
I  think  the  point  that  this  measure  desired  was  simply  this, — 

(Calls  from  different  parts  of  the  house  of  "louder". 

Mr.  Peck:  What  we  desire  to  get  a  vote  upon  the  principal 
and  consider  section  by  section  until  after  we  take  the  vote  upon 
the  principal.  I  think  the  wish  of  the  friends  of  it  is  to  secure  the 
b  est  system  of  voting  that  we  can  possibly  get. 

The  President:  Your  amendment  as  made  if  carried  would 
accept  the  whole  measure. 

Mr.  Peck:  It  becomes  a  part  of  the  report  and  then  will  be 
subject  to  revision  just  as  the  other  sections  of  the  report  are, — • 
subject  to  revision  afterwards,  to  strike  it  out  or  modify  it. 

Mr.  Hole:  As  I  take  it,  under  the  Constitution,  the  adoption 
of  this  would  make  it  permanent  and  would  make  this  law  and  part 
of  the  Schedule  absolutely.  We  have  already  adopted  or  made 
law,  as  far  as  in  this  Convention  lies  the  power,  all  the  sections 
down  to  and  including  Sec.  6.  We  now  have  before  us  Section  7. 
It  is  moved  as  an  amendment  to  Sec.  7  ;  that  amendment  is  carried ; 
then  on  motion  adopting  the  section  it  would  then  be  just  as  much  a 
part  of  the  Schedule  as  any  other  section  of  it.  It  looks  to  me  if 
we  urge  this  question  only  to  get  an  idea  of  the  feeling  of  the  Con- 
vention. If  this  is  only  to  feel  of  the  temper  of  the  Convention 
upon  this  subject  that  the  matter  might  be  brought  forward  by 
resolution.  But  in  this  we  are  making  law,' — wre  are  making  law 
when  we  vote  upon  this  and  we  cannot  afford  to  vote  blindly. 
While  I  may  be  in  favor  of  some  things,  I  may  not  be  in  favor  of 
others. 

Mr.  Dickinson:  I  do  not  agree  with  Mr.  Hole,  and  I  do  not 
understand  it  as  he  does.  I  understand  that  this  is  an  amendment 
to  Sec.  7  in  passing  upon  an  amendment  that  it  becomes  a  part  of 
Sec.  7.  We  do  not  thereby  adopt  Section  7,  we  can  re-commit  or 
assign  to  a  special  committee  or  re-commit  it  to  the  Schedule  Com- 
mittee or  take  it  in  Committee  of  the  Whole.  I  would  not  vote  for 
it  unless  it  were  to  pass  under  careful  review  and  inspection,  being 
careful  to  make  it  harmonize  with  other  portions  of  the  Schedule. 

Mr.  Jolley:     What  is  the  question  before  the  Convention? 

The  President:  The  adoption  of  the  amendment  to  Section 
7,  presented  by  Mr.  Peck. 

Mr.  Jolley:  Then  it  is  to  take  the  place  of  Section  7.  Mr. 
President,  at  last,  after  two  weeks  of  wrangling  on  this  section,  we 


304  SOUTH  DAKOTA  DEBATES  1889 

see  ourselves  at  the  threshold  of  having  passed  the  finest  Schedule 
that  ever  was  passed  by  a  constitutional  convention,  or  we  are  to 
the  threshold  of  having  it  mangled  so  that  its  parents  won't  know 
it.  I  had  supposed,  Sir,  that  from  the  time  that  this  Convention 
had  been  in  session  up  to  the  present  time,  judging  from  the  acts 
of  th's  Convention  and  from  the  manner  business  has  been  con- 
ducted that  we  could  get  on  through  as  we  had  begun,  careful,  pru- 
dent men,  trying  to  keep  ourselves  in  the  boundary,  in  the  formation 
of  our  Constitution,  within  the  powers  granted  to  us  by  the  Omnibus 
Bill.  The  Schedule  as  reported  by  the  Committee  this  morning  gov- 
erened  everything  that  is  necessary,  comes  right  up  the  line  allowed 
us  by  the  Omnibus  Bill.  But  when  that  line  is  passed  the  danger 
comes.  It  may  be  a  gratification  to  the  personal  interests  of  some 
delegates  upon  the  floor  of  this  Convention  to  be  recognized  by 
pressing  such  an  amendment  as  this,  without  judging  of  the  result 
and  effect  that  it  will  have  upon  the  State  of  South  Dakota.  It 
may  be  that  some  delegate  here  feels  determined  to  abandon  that 
straight  course  that  has  been  our  line  of  conduct  up  to  the  present 
time  and  that  they  will  put  this  Constitution  with  a  Schedule 
with  an  amendment  upon  it  in  a  position  where  it  will  be  in  very 
great  danger  of  being  wrecked.  Among  all  the  positions  it 
has  been  my  portion  to  be  connected  with  in  this  world,  I  never  was 
connecetd  with  a  position,  and  never  had  a  duty  to  perform  that 
was  so  difficult,  so  trying  and  in  which  more  care  had  to  be  ex- 
ercised than  drawing  a  Constitution  passed  by  the  people  to  be 
amended  under  this  Enabling  Act,  and  it  may  be  out  of  this  thought 
that  we  will  cease  to  be  a  Territory  in  a  short  time,  and  the  joy  that 
South  Dakota  will  soon  be  admitted  into  statehood  and  that  the 
star  of  South  Dakota  will  soon  be  placed  upon  the  national  colors, 
has  effected  our  good  judgment.  This  I  believe,  could  be  carefully 
looked  into,  for,  Sir,  if  there  is  any  doubt  in  the  mind  of  a  single 
delegate  in  this  Convention  I  cannot  conceive  the  reason  or  theory 
that  he  has;  I  cannot  conceive  of  the  line  of  logic  that  he  pursues. 
I  cannot  see  what  construction  he  gives  the  words  if  there  is  any 
question  of  that  kind  in  the  minds  of  any  delegate  here  as  to  whether 
we  have  the  power  to  make  this  amendment  or  not.  We  have  a  full, 
free,  open  and  clear  course  to  pursue,  but  we  must  be  careful  that 
we  do  not  deviate  from  that  course.  Why  Sir,  this  bill  here  is  a 
general  law,  relating  to  the  whole  election  as  provided  for  in  the 
Schedule  relating  to  State  officers.  It  relates  also  to  the  votes  for 


JOLLEY    ON     KXAHLING    ACT  305 

and  against  the  rejection  of  the  Constitution  that  we  will  put  before 
the  people  and  for  the  amendment  thereto.  No,  Sir,  I  undertake  to 
say  without  fear  of  successful  contradiction,  that  there  is  no  power 
given  us  any  place  in  this  Omnibus  Bill ;  there  is  not  a  word,  syllable, 
section,  chapter  or  article  from  beginning  to  end  which  gives  us  any 
right  to  tamper  or  interfere  in  any  manner  with  the  election  laws  as 
laid  down  in  the  Territory  of  Dakota  in  any  respect  except  upon  the 
question  of  the  adoption  and  rejection  of  the  Constitution  we  will 
put  before  the  people  The  Omnibus  Bill  says:  "And  all  persons 
resident  in  the  said  proposed  State  who  are  qualified  vo  ers  of  said 
Territories  as  herein  provided,  shall  be  entitled  to  vote  upon  the 
election  of  delegates,  and  under  such  rules  and  regulations  as  said 
Conventions  may  prescribe,  not  in  conflict  with  this  act,  upon  the 
ratification  or  rejection  of  the  Constitution."  Now,  Sir,  I  say  under 
that  language  that  that  is  all  the  language  of  this  Onv  ibus  Bill  that 
relates  to  what  we  shall  provide  as  rules  and  regulations  for  th ) 
election  of  State  officers,  not  the  election  of  the  several  persons 
that  is  attached.  But  the  rule  is  strict ;  the  law  must  be  enforced 
exactly  as  it  is ;  only  that  and  nothing  more.  You  can  provide 
no  rule  and  regulation  that  refers  to  the  election  of  State  officers; 
may  provide  rules  and  regulations  for  the  elect  on  upon  the  ques- 
tion of  the  rejection  or  ratification  of  the  Constitution,  but  you 
cannot  go  a  single  ell  further;  you  are  barred  and  can  proceed  no 
further.  Why,  Sir,  this  is  a  very  serious  question;  it  may  result 
in  this  Convention  of  raising  the  question  of  its  powers,  it  is 
frequent  in  courts  that  we  raise  the  question  of  its  juris- 
diction. When  we  come  before  the  people  with  our  work ;  when 
the  excitement  of  the  present  time  is  passed  and  gone;  when  we  s  t 
down  in  our  homes  and  consider  and  look  over  thus  question  as  the 
people  whom  we  represent  are  now  looking  at  it  ;  when  we  come  to 
such  things  as  it  is  we-  will  reali/.e  that  we  have  gone  beyond  the 
powers  granted  to  us.  Then  will  conic  the  rcru  tion  and  regret.  Why, 
Sir,  we  cannot  arrogate  to  ourselves  any  powers  except  what  is 
given  in  the  Omnibus  Bill  and  it  says  what  shall  be  done.  1  read 
from  Section  S  to  show  that  the  President  himself,  has  the  rijjit 
if  we  do  not  comply  with  the  provisions  of  the  Omnibus  Bill,  no 
matter  how  large  a  ballot  has  been  cast  in  hisConsI  union, 

no  matter  how  good  or  bad  the1  officers  may  be  that  arc  elected,  if 
we  deviate  from  tin-  prescribed  rule  that  is  given  us  by  a*  t  • 
gress,  then  the  President   has  the  right  to  consider  whether  we  v.i'1 


306  SOUTH  DAKOTA  DEBATES,   1889 

be  admitted  under  that  Constitution  as  adopted,  then  or  not.     I 
read  from  Section  8:     "And  if  the  Constitutions  and  governments 
of  said  proposed  States  are  republican  in  form,  and  if  all    he  pro- 
visions of  this  act  have  been  complied  with  in  the  formation  thereof, 
it  shall  be  the  duty  of  the  President  of  the  United  States  to  issue  his 
proclamation  on  announcing  the  result  of  the  election  in  each,  and 
thereupon  the  proposed  States  which  have  adopted  Constitutions 
and  formed  State  governments  as  herein  provided  shall  de  deemed 
admitted  by  Congress  into  the  Union  under  and  by  virtue  of  this 
act  on  an  equal  footing  with  the  original  States  from  and  after  the 
date  of  said  proclamation."     We  are  not  only  to  have  a  republican 
State  in  form  but  all  the  provisions  of  this  Omnibus  Bill  have  to  be 
complied  with.     So  much  for  our  power.     Mr.  President,  this  act, 
as  we  all  know,  was  approved  by  the  President  of  the  United  States 
on  the  22nd  of  February,  1889.     It  is  said  that  all  persons  resident 
in  these  proposed  States  "who  are  qualified  voters  as  herein  provided 
shall  be  entitled  to  vote.     Now,  Sir,  if  there  is  any  deviation  of  a 
single  jot  or  title  of  the  law,  complications  made  to  enter  into  it 
or  any   embarassing  cause  by   which   a   single   voter   thereby   is 
deprived  of  his  vote  for  or  against  this  Constitution,  then  you  have 
gone  further  than  you  are  empowered  to  do  and  you  cannot  pass 
that  Constitution  because  you  have  so  deprived  a  voter  of  his 
privilege.     The  President  will  say,  if  he  assumes  the  right,  that  we 
have  not  complied  with  the  plain  instructions,  that  the  provisions 
of  the  Enabling  Act  have  been  ignored.     Sec.  14  of  the  proposed 
amendment  reads  as  follows:     "No  person  shall  be  allowed  to  take 
his  ballot  paper  out  of  the  polling  place,  nor,  except  as  in  the  case 
provided  for  by  Sec.  Eleven  (11),  to  show  it  when  marked  to  any 
person  so  as  to  allow  the  name  of  the  candidate  f6r  whom  he  has 
voted  to  be  known,  and  any  voter  who  violates  or  refuses  to  com- 
ply with  this  ordinance  shall  not  be  permitted  to  vote."     Here  you 
go  to  work  into  a  lot  by  the  Omnibus  Bill  in  so  many  words  to  vote 
for  the  ratification  or  rejection  of  the  Constitution;  here  you  pass 
a  rule  that  a  man  shall  not  be  allowed  to  vote  for  State  officers  and 
the  Constitution,  or  its  ratification  or  rejection  and  if  he  does  not 
comply  with  the  rules  that  he  is  to  have  his  vote  rejected  and  is  thus 
disfranchised.     Whoever  heard  of  any  such  thing  as  that?  We  have 
no  power  given  us  for   this ;  we  are  formed  for  one  express  purpose ; 
we  are  here  to  amend  the  Constitution  in  compliance  with  the  pre- 
scribed limitations  of  the  Omnibus  Bill,  to  make  such  amendments 


JOLLEY'S  VIEWS  ox  ENABLING  ACT  307 

as  the  Enabling  Act  allow;  nothing  more  or  less.  And  if  there  is 
any  part  of  that  Omnibus  Bill,  a  single  line  or  sentence  by  which 
any  Legislative  power  is  granted  to  the  people  of  this  Territory,  I 
I  would  like  to  have  it  pointed  out.  Have  you  the  right  to  pass 
this  amendment?  Why,  Sir,  a  bill  before  our  Legislature  has  to 
be  read  three  times  before  each  house  and  must  be  passed  by  each 
house  and  then  go  before  the  Executive  of  the  Territory,  who  has 
the  right  to  veto  it.  How  do  we  stand  here  in  this  Constitutional 
Convention;  does  the  mere  act  of  our  voting  this  make  it  a  law5 
Have  we  any  power  that  makes  this  law  ?  We  go  to  work  and  pass 
this  Constitution  voting  for  it,  signing  it,  and  enrolling  it  and  for- 
warding it  to  the  place  and  custodianship  of  the  officer  pro  ided  by 
law.  Does  that  make  a  Constitution?  No  Sir,  that  never  makes 
a  Constitution.  You  not  only  have  to  do  that  but  you  have  to  go 
before  the  people  first  and  they  by  majority  vote  have  to  ratify 
what  you  do  here.  Let  us  not  forget  that  this  Constitution  is  an 
inanimate  thing  until  vivified  by  an  endorsement  by  popular  vote. 
You  are  bringing  forth  a  creature  in  which  the  breath  of  life  cannot 
be  instilled  until  our  acts  are  done,  and  you  on  this  floor  arrogate  to 
yourselves  to  tell  a  man  if  he  does  not  comply  with  that  section  he 
must  be  disfranchised  and  his  vote  cannot  be  counted.  Not  only 
must  the  people  of  this  Territory  breath  life  into  this  Constitution ; 
it  goes  further  than  that,  and  a  majority  vote  only  creates  life. 
If  the  President  of  the  United  States  hears  you  have  not  complied 
in  every  respect  with  the  Omnibus  Bill  and  he  puts  a  veto  upon  it, 
then  life  is  squelched  out  of  it.  Until  Congress  admits  us  into  the 
relations  of  the  United  States  then  here  is  this  body  without  any 
power  to  create  any  interest  in  or  give  any  force  to  this  Constitution 
which  you  adopt.  It  is  forward  to  assume  that  power  that  says, 
this  man  unless  he  complies  with  this  law  contemplated  in  this 
amendment  he  shall  be  disfranchised  ;  shall  not  be  allowed  to  vote, 
in  clear  violation  of  the  written  law  of  the  Territory  of  Dakota. 

SEC.  16.  Immediately  on  the  close  of  the  poll  the  judges  in 
the  presence  of  the  clerks  of  election  and  such  of  the  watchers  and 
voters  as  desire  to  be  present,  shall  open  the  ballot  box  and  proceed 
to  count  the  number  of  votes  for  each  candidate.  In  doing  so  they 
shall  reject  all  ballot  papers  which  have  not  been  supplied  by  them 
as  judges  of  said  election,  all  ballots  by  which  more  candidates  have 
been  voted  for  than  there  are  officers  to  be  elected ;  also  those  upon 
which  there  is  any  writing  or  mark  by  which  the  voter  can-be  iden- 


308  SOUTH  DAKOTA  DEBATES,  1889 

tified.  All  ballots  voted  and  counted  and  those  rejected,  those 
spoiled  and  those  unused,  shall  be  put  into  separate  envelopes 
and  all  these  parcels  shall  be  endorsed  so  as  to  indicate  their  con- 
tents, and  be  placed  in  the  ballot  box  and  a  return  of  the  result  of 
the  election  at  the  polling  precinct  shall  be  made  to  the  County 
Clerk  or  County  Auditor,  as  now  required  by  law  for  the  election 
of  members  of  the  Territorial  Legislature  There  is  a  provision, 
Sir,  that  clearly  violates  the  laws  of  the  Territory.  We  come  1  ere 
to  -adopt  a  Constitution  and  arrogate  to  ourselves  the  right  to 
change  fundamental  law  of  the  land  and  say  that  the  votes  cannot 
be  counted.  Sir,  you  are  stepping  upon  the  brink  of  an  abyss  in 
attempting  any  such  power  as  that.  You  disfranchise  the  people 
of  this  Territory  and  who  wants  to  take  that  responsibility?  I  do 
not  want  .that  in  mine ;  to  disfranchise  them  or  dictate  the  manner 
in  which  they  shall  vote.  It  is  attempting  what  is  in  clear  violation 
of  the  law.  That  is  base  libel  upon  the  reputation  of  your  people 
to  assume  that  you  have  been  elected  for  that  purpose  or  to  assume 
to  yourself  the  right  to  put  into  the  Schedule  something  that  dis- 
franchises any  voter  of  the  Territory  of  Dakota.  Why,  Sir,  it  is  not 
two  months  from  now  until  the  election  comes.  You  will  start  a 
revolution  that  has  not  been  equaled.  If  at  the  time  of  the  election 
you  tell  the  people  they  must  do  these  things  or  be 'disfranchised. 
Let  us  tell  the  Czar  of  Russia  to  come  here  and  by  his  edict  say  that 
the  people  shall  not  vote  till  they  vote  as  he  tells  them  to.  There  is 
no  punishment  that  can  be  inflicted  for  violation  of  the  law,  I  do 
not  care  on  what  ground  or  section  you  put  it,  no  court  under 
Heaven  that  would  hold  an  indictment  found  under  that  valid  for 
a  single  instance.  Here  you  disfranchise  a  man, — for  what?  For 
something  that  is  trifling,  because  he  goes  to  work  and  he  shows 
his  vote,  shows  how  he  scratched  his  ballot;  let  a  man  see  how  he 
votes;  for  that  act,  that  may  be  done  as  innocently  as  any  act  can 
be  done  by  the  purest  person  in  the  world,  and  for  that  act  you  take 
away  his  manhood ;  for  that  you  rob  him  of  his  personal  rights  of 
American  citizenship ;  for  that  act  you  put  him  in  a  position  where 
he  has  no  right  to  say  how  he  shall  be  governed.  Why,  Sir,  this 
question  is  an  appalling  one ;  this  question  is  one  that  I  approach 
with  a  great  deal  of  dread.  I  t'o  not  suppose,  Sir,  that  anything 
that  I  can  say  will  change  the  result  in  this  Convention.  We  have 
heard  upon  the  streets,  no  word  can  stop  this  act;  no  reason 
can  stay  this  crime  and  if  that  is  the  result  I  do  not  care 


JOLLEY'S  VIEWS  ON  ENABLING  ACT  309 

how  this  has  been  brought  about ;  I  do  not  care  who  is  the  per- 
petrator of  this  act,  I  want  it,  when  this  act  is  done,  when  this  act 
is  passed  upon  by  the  people  and  we  have  adjourned  to  our  homes 
and  neighbors  and  are  confronted  with  our  work  in  this  Convention, 
that  when  they  say  anything  to  me  or  about  me  they  cannot  say 
I  did  it.  Then,  Sir,  here  is  the  question  we  are  called  to  vote  upon 
now ;  we  are  to  pass  an  act  which  we  cannot  by  any  penalty  under 
Heaven  enforce.  You  arrogate  to  yourselves  the  right  to  disfran- 
chise American  citizens, —  something  un-American  and  unknown. 
You  are  to  convict  a  man  of  crime,  unheard  by  a  jury  and  without 
being  tried  by  a  jury  of  his  peers.  You  say  that  these  judges  of 
election,  two  or  three  of  them,  have  the  power  to  say  to  this  man 
if  he  does  such  a  thing,  without  trial  by  anybody,  no  evidence  be  ng 
given  in  his  defence,  no  jury,  no  court;  try  him  and  let  these  judges 
with  their  power  pass  judgment  upon  him.  Three  men  responsible ; 
no  one  to  guide  where  any  little  informality  by  a  single  voter  \\ill 
disfranchise  him.  This  is  the  ninteenth  century  and  this  is  a  Con- 
stitutional Convention  framing  a  Constitution  for  the  people  who 
have  lived  in  this  Territory  for  nearly  a  quarter  of  a  century.  If 
there  has  been  a  crime  committed,  ballot-box  stuffing,  if  there  has 
been  fraud  in  elections  and  if  there  will  be  at  the  coming  election 
you  will  by  the  passage  of  this  act  do  something  that  you  know  the 
like  of  which  never  before  occurerd  in  all  Christendom.  Three^ 
judges  of  election  sitting  there  clothed  with  such  power  that  au- 
thorizes them  for  a  trifling  irregularity,  to  disfranchise  American 
citizens.  The  thought  is  appalling  and  he  who  gives  them  the 
right  to  do  it  is  a  party  to  the  crime. 

Mr.  Peck:  I  tried  to  correct  my  amendment  before  Mr.  Jol  ey 
got  to  going.  I  will  read  my  amendment  as  I  supposed  my  remarks 
would  have  conveyed:.  "That  Section  7  of  the  report  of  the  Com- 
mittee on  Schedule  be  amended  by  adding  the  following  thereto, 
this  to  be  considered  paragraph  by  paragraph  with  the  other  portion 
of  said  section.  This  will  be  considered  in  connection  with  it." 

Mr.  Williams:  I  dislike  very  much  to  prolong  the  session,  but  I 
feel  compelled  as  my  friend  Jolley  says  "to  say  something";  I  feel 
that  I  have  something  that  if  I  do  not  say  it  I  will  not  be  satisfied. 
I  believe  it  is  my  duty,  representing  the  people,  to  speak  upon  these 
questions  when  I  have  anything  to  say.  I  have  endeavored  since  I 
have  been  in  this  Convention,  as  well  as  my  friend  Mr.  Jolley,— and 
it  has  been  an  honest  endeavor,  that  I  shall  speak  little.  My  en- 


310  SOUTH  DAKOTA  DEBATES,   1889 

deavor  has  been  and  my  determination,  to  be  a  working  member 
rather  than  a  talking  member.  Being  so  determined  I,  impart  that 
determination  for  what  it  is  worth,  to  others,  to  guide  us  straight  to 
our  work  of  this  Convention  according  to  the  powers  which  we  have. 
And  in  order. to  arrive  at  the  power  which  this  Convention  has  we 
have  to  look  to  the  Enabling  Act  and  inasmuch  as  there  are  a  great 
many  of  us  we  have  looked  at  it  from  a  great  many  different  stand- 
points. 

While  I  believe  we  are  bound  by  every  provision  of  th's  organic 
act  and  that  we  have  no  authority  to  overrule  one  of  its  provisions, 
I  believe  on  the  other  hand  that  this  body  is  not  here  solely  with 
delegated  powers.  I  believe  that  we  are  in  existance  and  that  being 
in  existence,  there  are  particular  subjects  that  must  come  before 
this  body ;  particular  subjects  to  be  considered  and  which  this  body 
was  brought  into  existence  to  consider;  that  we  can  go  beyond  the 
rule  laid  down  in  the  organic  act  known  as  the  Omnibus  Bill.  I 
believe  further,  aside  from  that  step  this  body  meets  here  with  all 
the  powers  that  any  constitutional  body  goes  about  its  business. 
I  do  not  claim  that  we  meet  with  unlimited  or  untrammelled  powers, 
but  we  meet  with  certain  powers  conferred  upon  us,  and  within  the 
scope  of  these  delegated  powers  we  are  bound  hand  and  foot.  But  be- 
yond that  is  a  field  and  that  in  that  field  we  are  at  liberty  to  work  for 
the  best  interests  of  the  people  who  sent  us  here,  so  as  not  to  trample 
the  restrictions  imposed  upon  us  by  the  Omnibus  Bill.  By  the  Con- 
stitution that  was  adopted  on  the  14th  of  May,  I  cannot  understand 
my  friend  Jolley's  speech  nor  this  Ordinance,  except  we  look  at  it 
this  way;  that  a  certain  committee  authorized  by  that  Conevntion, 
sitting  in  that  authorized  Convention  have  powers  that  it  does  not 
in  this  Convention.  We  find  a  provision  submitted  to  this 
Convention  to  become  a  part  of  the  ordinance  of  this  Convention 
from  a  Committee  of  which  the  gentleman  is  one  of  the  leading 
members  and  if  it  passes  it  proposes  to  do  just  exactly  as  the  gentle- 
man says  it  is  not  in  the  power  of  this  Convention  to  do,  and  that  is 
to  put  vitality  in  this  Constitution.  I  read  the  provision:  "The 
election  provided  for  herein  shall  be  under  the  provisions  of  the 
Constitution  herewith  submitted."  That  is  the  provision  that  the 
Committee,  of  which  he  is  one  of  the  members,  brings  before  this 
Convention.  That  is,  that  this  Convention  shall  vote  certain 
propositions  putting  vitality  into  the  Constitution  and  making  it 
a  law  of  the  land.  With  my  limited  knowledge  of  Constitutional 


W.  T.  WILLIAMS  SPEAKS  311 

law,  I  assert  that  there  is  no  power  under  the  sun  to  give  it  vitality 
except  the  vote  of  the  people  when  it  is  ratified.  Then  that  Com- 
mittee has  arrogated  to  itself  power  that  it  has  not  got. 

Mr.  Van  Buskirk:     Where  is  that  provision  that  you  read? 

Mr.  Williams:  You  will  find  it  in  Section  7,  report  of  the 
Schedule  Committee. 

Mr.  Williams:  Now,  Mr.  President,  I  wish  to  say  this  with 
reference  to  the  question  before  the  Convention,  that  is  that  these 
rules  proposed  here  in  this  amendment  are  not  for  the  purpose  of 
establishing  the  quafifications  or  electors.  There  is  a  difference,  a 
material  difference  between  rules  governing  the  deposit  of  a  ballot 
by  qualified  electors  by  making  a  law  prescr  bing  the  mode  of  de- 
positing the  ballot. 

The  amendment  offered  in  Sec.  7  does  not  attemp'.  in  any  par- 
ticular to  say  what  the  qualifications  of  the  electors  are,  but 
excepting  the  qualifications  laid  down  by  the  statutes  of  the 
Territory  of  Dakota;  it  only  proposes  to  say  that  the  elector, 
with  all  that  magnificent  and  grand  power  directed  to  him  by  the 
general  government, 'which  he  undoubtedly  possesses,  shall  deposit 
that  ballot.  That  he  shall  exercise  that  right  to  vote,  in  a  certain 
way,  not  in  any  manner  prescribing  or  limiting  the  qualifications  or 
rights  as  a  voter;  and  if  an  honest  voter  it  cuts  no  figure.  The 
amendment  is  interposed  for  the  purpose  of  preventing  a  dishonest 
voter  from  taking,  or  stealing  I  may  say,  the  result  of  an  honest 
ballot  cast.  Now,  Sir,  I  would  ask  this,  is  the  dishonest  voter  or 
his  rights  more  sacred  than  the  honest  voter?  The  just  voter  and 
the  unjust  receive  alike  and  are  equally  protected  and  guar  nteed 
at  this  station  in  the  enjoyment  of  the  highest  law  in  the  land,  that 
of  the  right  of  voting.  This  amendment  docs  not  detract  or  take 
from  him  one  qualification  nor  add  to  one  qualification.  It  says 
in  order  that  your  vote  as  cast  may  be  cast  honestly,  and  that  you 
shall  n*ot  be  dictated  to  or  interfered  with  directly  or  indirectly  when 
casting  an  honest  vote,  only  would  require  that  you  comply  with 
this  reasonable  request.  That  is  all  that  it  is;  it  is  not  law.  This 
ordinance  the  gentleman,  by  <  ertain  reports  made,  attempt  to  make 
and  establish  a  law  of  the  land  upon  certain  questions  that  perhaps 
are  not  of  as  much  interest,  yet  he  denies  the  right  of  this  Conven- 
tion to  prescribe  a  rule  governing  the  rule  by  which  lie  exercises 
the  right,  it  does  not  attempt  to  bridge,  only  attempts  to  establish 
a  rule  of  action  in  no  sense  assailing  the  fundamental  right  of  in- 


312  SOUTH  DAKOTA  DEBATES,   1889 

dividuals  But  it  only  prescribes  a  rule  that  shall  be  enforced  just 
for  the  time  being  and  it  is  in  fact,  most  salutary  in  its  effects. 
That  is,  if  a  voter  is  honestly  intending  to  cast  his  vote  and  cast  it 
in  an  honest  way,  this  rule  will  not  infringe  upon  him  in  any  such 
act.  But  if  the  is  intending  to  cast  a  dishonest  vote,  then  probably 
in  this  rule,  should  it  be  adopted,  he  will  find  little  comfort.  I  do 
not  believe  this  Convention  has  any  power  to  say  that  this  question 
shall  only  be  taken  up  by  the  Legislative  power  under  this  Con- 
stitution. 

Mr.  Sherwood:  Is  there  any  authority  for  the  adopting  of 
this  Australian  system  except  what  is  contained  in  these  rules  and 
in  the  Omnibus  Bill?  In  the  last  clause  of  Section  3? 

Mr.  Williams:  Without  attempting  to  give  a  definite  answer 
I  will  say  this ;  whether  we  get  this  Australian  system  or  not,  I  take 
it  the  Australian  system  in  its  entirety  prescribes  the  qualifications 
of  electors.  This  does  not.  We  have  here  prescribed  the  rules 
and  regulations  for  voting  upon  the  adoption  of  the  amendment  to 
the  Constitution  denying  that  this  Convention  can  by  rule  or 
regulation  prescribe  the  mode  of  depositing  the  ballot  for  State 
officers.  I  understood  that  to  be  the  position  of  the  gentleman 
from  Clay  County. 

Mr.  Corson:  I  would  ask  if  any  county  refuses  to  adopt  this 
rule,  what  then  ?  I  am  of  the  opinion  that  they  cannot  be  compelled 
to  it 

Mr.  Zitka:  If  I  should  come  to  the  Ballot  box  after  I  prepared 
myself  at  the  next  election  according  to  the  Territorial  laws  in 
present  existence  and  offered  my  vote,  not  having  inquired  about 
the  laws  or  the  manner  in  which  the  judges  prescribed  it  shall  be 
received,  not  conforming  in  every  minor  particular  with  the  law 
as  proposed  in  this  amendment  would  the  vote  be  legal  or  not ;  would 
the  judges  have  to  reject  my  vote  and  thus  disfranchise  me?  Now 
have  we  the  right  to  legislate  and  disfranchise  the  people,  in  this 
Convention?  We  are  assuming  a  right  we  have  no  right  to. 

Mr.  Williams:  I  think  the  judges  would  be  right  to  reject  your 
vote.  What  I  intended  to  say  was  this ;  it  being  admitted  Congress 
<says  in  this  organic  act  that  at  the  same  election  we  may  provide 
for  the  election  of  certain  officers,  I  would  ask  this  question:  Where 
is  the  authority  for  saying,  except  by  violent  presumption,  that  it 
was  the  intention  of  Congress,  after  once  having  granted  the 
authority  and  prescribed  the  rule  for  one  thing  that  we  must  provide 


AUSTRALIAN-   BALLOT  313, 


a  different  set  of  blanks  for  judges  and  clerks,  and  have  an  election 
conducted  under  different  rules  and  regulations?  I  say  where  is 
the  authority  for  that  except  by  violent  presumption,  except  in  a 
strange  interpretation  of  the  Enabling  Act?  This  is  a  presumption 
without  a  letter  or  word  in  this  organic  act,  if  we  have  the  power 
to  prescribe  the  rules  for  one  and  not  the  other  election.  They 
cannot  be  authorized  by  the  Enabling  Act  at  the  same  time.  It 
must  be  the  same  electors,  the  same  judges  of  election  and  clerk  and 
the  same  ballot.  As  the  Committee,  of  which  the  gentleman  is  a 
member  have  reported  this  bill,  they  have  adopted  that  as  their  in- 
terpretation of  the  Enabling  Act.  Then  the  rules  and  regulations 
by  the  interpretation  of  this  Committee  shall, be  the  same  in  each 
instance.  Then  the  only  way  out  of  it  is  to  say  that  because  this 
is  not  granted  to  us  by  express  words  in  one  instance  that  we  cannot 
exercise  the  powers  granted  us  in  another. 

Mr.  Cooper:  Suppose  a  duly  qualified  elector  should  duly 
tender  a  legal  ballot  to  the  judges  of  election  and  they  refuse  to  take 
it,  under  what  law  would  he  procure  redress  of  the  judges?  I  have 
not  stopped  to  examine  that  and  I  do  not  care  to  now,  but  it  is  a 
question  that  I  will  take  up  and  examine  in  time. 

Mr.  Van  Buskirk:  I  am,  myself  in  sympathy  with  the  spirit 
proposed  in  this  amendment,  that  is  if  we  have  the  power  to  do  it 
and  if  I  vote  against  it  I  shall  vote  against  it  seriously  and  with 
the  conviction  that  we  have  not  the  power  to  pass  this  amendment, 
and  I  shaH  regret  that  we  have  not.  I  have  listened  to  arguments 
so  far.  I  am  sorry  to  say  that  my  first  impressions  were  not  correct ; 
from  all  I  can  see,  and  the  best  light  upon  this  subject  that  I  possess 
at  this  mo'ment,  I  am  forced  to  take  a  position  upon  this  floor  against 
this  amendment.  I  do  not  know  but  that  some  member  of  the 
Committee  who  had  this  amendment  under  consideration,  may  have 
had  their  .attention  called  to  some  other  provisions  than  what  I 
have;  but  I  am  at  present  constrained  to  think  as  Mr.  Jolley  has 
said,  that  all  that  we  can  find  in  this  Omnibus  Bill  that  will  permit 
us  to  adopt  this  amendment  will  be  contained,  perhaps,  in  those 
words:  "And  all  persons  resident  in  said  proposed  states  who  are 
qualified  voters  of  said  Territories  as  herein  provided,  shall  be  en- 
titled to  vote  upon  the  election  of  delegates  and  under  such  rules 
and  regulations  as  such  Convention  may  prescribe,  not  in  conflict 
with  this  act." 

I  am  sorry  to  say  that  it  appears  to  me  from  that  that  if  that 


314  SOUTH  DAKOTA  DEBATES,   1889 

was  the  intention  of  Congress  that  we  should  prescribe  that  form 
of  ballot  only  upon  the  Constitution.  Turning  from  the  last  section 
referred  to  to  Section  24:  "That  the  Constitutional  Conventions, 
may,  by  ordinance,  provide  for  the  election  of  officers  for  a  full 
State  government".  I  am  very  much  at  loss  to  understand  how 
we  can  pass  this  amendment,  adopt  it,  and  make  it  of  any  obligator)' 
force  whatever.  Unless  I  can  get  more  light  I  am  constrained  to 
believe  that  if  we  pass  that  amendment  and  I  should  walk  down 
to  the  polls  and  if  I  should  present  a  ballot  just  as  I  would  if  we 
do  not  pass  this,  and  if  the  judges  acting  in  the  spirit  of  this  amend- 
ment, should  reject  my  ballot  I  am  very  much  in  doubt  wrhether  I 
would  have  any  action  against  them  for  refusing  to  receive  my  vote 
I  am  heartily  in  the  spirit  of  this.  If  I  could  throw7  some  further 
restrictions  around  the  method  of  casting  our  ballot,  I  should  do  it; 
I  would  be  glad  if  any  member  of  this  Convention  can  find  any 
clause  that  can  give  us  that  power. 

Mr.  McFarland:  What  is  the  meaning  of  the  expression 
"Provide  for  the  election  of  officers"? 

Mr.  Van  Buskirk:  As  I  said,  unless  there  is  something  more 
than  is  contained  in  this  I  shall  be  compelled  regretfully  to  vote 
againts  this,  because  I  am  in  sympathy  with  the  proposition  and 
phases  of  it.  It  don't  say  we  must,  but  we  may  provide  for  the 
election;  it  says  we  may  elect  these  State  officers.  I  do  not  think 
with  a  reasonable  interpretation  of  the  act,  we  can  do  other  than 
go  to  work  as  prescribed  I  cannot  find  here  authority  to  adopt 
a  different  manner  in  which  to  deposit  our  ballot  than  we  now  have 
on  our  statute  books  and  as  I  say,  if  any  member  can  inform  me 
so  I  can  consistency  vote  for  the  measure,  and  throw  some  further 
restrictions  around  the  ballot,  I  shall  be  glad  to  do  so.  It  is  pos- 
sible some  member  may  have  had  his  attention  called  to  some  pro- 
vision other  than  what  has  been  alluded  to  and  it  may  help  me  out  of 
out  difficulty. 

Mr.  Hur.tley:  If  we  have  no  power  to  enforce  the  provision 
of  the  ordinance,  leave  that  out,  and  suppose  we  adopt  the  rest  of 
this  ordinance  which  is  here  recommended, — if  we  have  no  power 
to  enforce  this  ordinance,  the  ordinance  we  are  adopting. 

Mr.  Van  Buskirk:  The  ordinance  we  adopt  does  not  prescribe 
any  qualifications  of  the  voters;  does  not  prescribe  any  manner  in 
which  he  shall  receive  it.  The  laws  of  the  Territory  steps  in  and 
supplies  all  those  matters. 


"OLD  FATHER  LEE"  315 


Mr.  Lee:  I  do  not  wish  to  discuss  this  question  now;  I. wish 
to  call  my  friend's  attention  to  the  clause  he  read,  Section  3 — the 
last  part  of  Section  3.  Now,  Sir,  a  few  days  ago,  an  unwary  clerk 
at  Washington  misplaced  the  semi-colan  and  added  the  conjunction 
and,  and  it  cost  $200.000  to  fix  that  up  when  it  was  d  scovered  and 
years  of  hard  work  The  matter  should  have  read  in  the  document 
that  "Fruit-trees  should  be  received  without  paying  any  duties, 
and  he  said  "fruit  and  trees"  and  put  the  semi-colan  after  the  third 
word,  and  some  ingenious  Yankee  found  out  he  could  introduce  his 
fruit  as  well  as  trees,  and 'went  before  the  court  and  the  court  sus- 
tained him.  Now  gentlemen,  I  am  lawyer  enough  to  see  this;  you 
take  the  third  clause  and  read  it  down  until  you  come  to  the  next 
to  the  last  conjunction,  this  is  a  matter  of  common  sense  and  common 
sense  is  generally  pretty  good  law.  "The  number  of  delegates  to 
said  Conventions  respectively  shall  be  seventy-five".  Why  haven't 
we  a  grain,  haven't  we  more  than  a  grain  of  common  sense  except 
old  Father  Lee"  and  all  persons  resident  of  said  proposed  states  who 
are  qualified  voters  of  said  Territories  as  herein  provided  shall  be 
entitled  to  vote  upon  the  election".  Of  what?  "Delegates",  and 
now  the  rest  of  these  four  lines  don't  mean  anything  for  it  is  dif- 
ferent states  and  made  for  a  different  time.  We  are  not  in  Con- 
vention and  we  cannot  do  anything  as  a  Convention  until  we  are 
met  here  as  a  Convention (?).  Beyond  question  seventy-five  men 
were  really  elected;  now  can  seventy-five  men  say  we  are  elected 
and  get  together  and  make  laws  and  do  anything  but  lay  the 
foundation, — lay  the  track  upon  which  to  sail  this  grand  old  State 
into  the  Union? 

Beyond  question  when  you  cancel  this  conjunction  and,  you 
cannot  do  anything  further.  The  rest  of  the  four  lines  belongs 
down  upon  Section  24,  and  merely  stuck  on  there.  Sometimes  a 
little  piece  of  lead  will  stick  to  a  bullet  when  we  run  it  which  we 
cut  off  to  make  the  ball  go  straight.  I  am  not  ready  to  make 
my  little  speech. 

Mr  Davics:  I  must  say  that  the  arguments  have  been  so 
scattered  that  I  do  not  know  much  more  about  it  than  when  I  came 
here  this  afternoon.  The  eyes  of  Dakota  are  upon  this  Convention 
and  whether  we  have  the  power  or  not  it  seems  to  be  generally 
understood  that  we  have,  and  we  are  going  to  l>e  held  responsible. 
As  I  understand  it  the  election  that  is  going  to  take-  plan'  next. 
October, — the  Constitution  of  the  Territory  of  Dakota,  the  Con- 


316  SOUTH  DAKOTA  DEBATES,   1889 

stitution  which  we  are  allowed  to  adopt  has  been  anticipated  and 
the  framers  of  that  Constitution  designed  that  such  an  election 
w<ould  h  ve  to  take  place,  as  the  election  that  is  to  take  place  next 
October.  The  question  is.  whether  we  govern,  or  are  we  to  be 
goverened  in  the  mere  manner  of  conducting  that  election  by  the 
laws  of  the  Territory  or  are  wre  to  be  goverened  by  the  act  which 
created  that  election,  by  the  Enabling  Act  of  Congress, — in  other 
w-ords,  does  the  Enabling  Act  say  to  us,  "Go  on  with  that  election 
and  have  it  according  to  the  laws  of  your  Territory"  or  does  it  go 
on  and  say  "You  will  have  your  election  and  by  ordinance  elect 
your  officers",  etc. 

Now  if  we  can  say  whether  the  Enabling  Act  intended  us  to 
take  that  course,  or  say  how  it  shall  be  conducted,  I  am  not  prepared 
to  say  which  of  these  two  we  are  to  follow.  It  seems  to  me  some  of 
the  members  of  this  Committee  that  have  given  particular  attention 
to  this  matter  can  confine  their  argnments  to  this  one  point.  It 
seems  to  me  we  had  better  spend  another  day  on  this  than  murder 
the  principle  involved  in  this  amendment.  I  should  very  much 
dislike  to  vote  against  the  principle  of  protecting  the  ballot  box. 
We  know  this  is  one  of  the  greatest  failures  in  American  politics — 
the  question  of  the  preservation  of  the  sanctity  of  the  ballot  box. 
It  is  one  of  the  most  vital  questions  confronting  the  American 
statesman  today.  I  do  not  see  my  way  at  present  to  do  it.  Then 
too,  there  is  a  great  question  in  my  mind  whether  this  lawr,  if  passed 
can  be  enforced  practically  if  it  is  put  in  operation  at  our  next 
October  election.  I  want  to  vote  for  this  but  do  not  see  my  way 
clearly  to  that  determination  at  present. 

Mr.  Zitka:  I  believe  that  this  Convention  has  no  power  to 
legislate ;  has  no  power  to  change  the  general  laws  as  they  now  stand 
upon  our  statute  books.  That  we  have  no  power  whatever,  or  au- 
thority, not  clothed  with  that  authority  to  change  the  general  elec- 
tion laws  as  they  are  now.  If  you  adopt  this  amendment  as  it  is  here 
presented  you  certainly  do  that.  My  ballot  may  be  rejected  indeed, 
according  to  this  amendment,  should  be  rejected..  Are  we  not 
legislating  here ;  are  we  arrogating  to  ourselves  to  rule,  a  right  which 
was  never  granted  to  us  ?  Certainly  you  are ;  Congress  never  meant 
that  this  should  be  done.  Makers  of  the  Constitution  of  1885  never 
dreamed  that  this  Convention,  if  it  ever  existed,  would  go  to  work 
to  change  the  general  election  laws  for  the  purpose  of  adoption  of 
the  Constitution.  If  there  is  any  power  anywhere  it  is  in  the  Legis- 


THOS.  STER-LINO  TALKS  317 

lature.  I  do  not  think  that  Mr.  Williams  studied  this  question  very 
dec-ply.  I  think  that  for  this  reason.  Yesterday  he  stated  to  me 
that  this  proposition  in  his  mind  was  ill-timed;  he  didn't  think  it 
was  good,  and  today  he  is  supporting  it.  Considering  the  short 
length  of  time  in  which  he  changed  his  mind,  I  think  he  did  not 
consider  this  as  he  should  have  done.  Therefore,  I  state  th's  that 
when  you  disfranchise  the  people  of  their  rights  to  vote  you  dis- 
franchise them  of  the  dearest  rights  that  a  man  has  got.  If  I  am 
a  voter  under  Jhe  present  Territorial  laws,  I  am  certainly  a  voter 
when  I  come  to  the  ballot  box  to  vote  on  the  Constitution.  You 
change  your  mode  of  voting,  debar  me  and  deprive  me  of  the  right 
to  vote  unless  I  confoim  to  certain  restrictions  which  never  have 
been  heard  of  before;  that  I  must  have  certain  initials  upon  the  back 
of  the  ballot.  Is  not  that,  Sir,  a  practice  which  should  be  regulated 
to  foreign  countries  ruled  by  kings  and  emperors.  Is  this,  a  free 
country,  of  the  ninteenth  century?  Is  this  the  United  States  of 
America,  of  which  every  citizen  is  proud  of  his  citizenship?  I  be- 
lieve this  Australian  system  was  made  for.  Australia  and  not  for 
this  free  United  States. 

.Mr.  Sterling:  Gentlemen  of  the  Convention;  I  think  I  fully 
appreciate  the  discus:  ion  of  this  question.  I  have  reached  my 
present  conclusion  after  not  a  little  thought  and  had  we  a  little 
more  opportunity  to  examine  into  the  question  of  the  rules  and 
regulations  pertaining  to  elections  we  would  have  found  something 
startling  upon  the  question  discussed  here  today.  I  had  intended 
examining  the  subject  at  length  on  that  line.  I  have  not  had  time 
to  do  so.  What,  gentlemen,  does  this  amendment  prescribe?  Any- 
thing more-  than  a  few  rules  and  regulations  governing  the  i  ondiu  t 
of  the  election  at  any  particular  polling  place.  I  have  heard  the. 
discussion.  A  few  practical  things  have  suggested  themsel 
my  mind,  that  might  happen  in  any  polling  place  without  any 
statutory  provision  upon  the  subject  at  all. 

Suppose  there  is  a  notiie  of  eleition  to  be-  held  in  a  certain 

polling  place  in  a  certain  ward  or  precinct,  and  suppose  the  manu- 

•   that   election,  the  judges  Of  clerks  of  election  shall,  on  the 

morning  of  the'  election  before  they  go  to  the  polls  and  before  any- 

i  he-re  at  all,  mutually  coin-hide-,  for  the  sake-  of  c  Mivenienc  e. 

although  this  is  the-  p!ai  e-  dingnate-d  by  law  as  th<-  place1  for  holding 

.•tion,  nevertheless  on  account  of  MHIK-  e  ontingciicy  that  they 

had  not  t  h on ght  of,. for  convenient  c  or  otherwi;  e,  remove-  it  t' 


318  SOUTH  DAKOTA  DEBATES,   1889 

other  place  reasonably  convenient  to  all ;  that  they  made  that 
change  before  the  polls  were  open,  do  you  believe  that  the  voters 
of  that  precinct  have  got  reasonable  access  to  the  polls  at  the  place- 
to  which  they  were  removed,  that  they  could  come  in  and  say  they 
were  disfranchised  because  of  that ?  I  think  not.  Suppose  in  the 
absence  of  any  statutory  provision,  the  judges  of  the  election  had 
decided  that  they  would  not  allow  the  election  to  be  held  in  that 
place  that  the  regulations  recorded,  that  the  public  order  re- 
corded; further  that  they  would  not  allow  but  one  man  in  the  poll- 
ing place  at  a  time,  except  the  judges  and  clerks,' do.  you  believe 
that  they  would  have  the  right  to  do  it?  I  do.  Does  this  amend- 
ment disqualify  or  effect  the  qualifications  of  the  voter  in  any 
degree?  No,  it  does  not;  it  is  simply  saying  that  here  on  account 
of  a  particular  element  that  we  have  to  contend  with  at  this  place, 
on  account  of  the  great  number  of  voters  and  the  question  at  issue, 
it  is  better  that  we  for  this  election  prescribe  these  rules  and  regu- 
lations and  deem  it  wise  to  designate  the  manner  that  the  voter 
shall  cast  his  ballot  at  the  time.  Then  someone  says:  "I  have  the 
right  to  go  in  with  this  voter  and  vote."  And  the  judges  have  said 
"No,  the  public  order  and  public  decency  requires  that  but_one 
come  at  a  time  to  cast  his  ballot,  and  the  party  persists  in  demand- 
ing the  privilege  until  the  police  power  takes  hold  of  him  and  says 
to  him  "You  cannot  go  in".  What  is  the  result?  He  comes  and 
says  "I  am  disfranchised".  Disfranchisement,  indeed!  Has  he 
been  prevented  from  casting  an  honest  ballot  ?  Far  from  it.  I  say 
he  has  not ;  I  say  that  just  rules  as  that  the  judges  of  election  have 
the  power  to  prescribe  or  if  not  the  judges  of  election,  then  the 
county  officers  who  have  the  management  of  the  election  within 
the  county  or  precinct.  It  is  a  reasonable  rule  and  regulation  for 
that  particular  election.  What  is  this  ?  I  believe  that  for  the  most 
part  it  is  rules  prescribing  how  many  voters  shall  be  in  the  apart- 
ment in  which  the  votes  are  cast  at  a  time.  Nothing  more  than  that . 
Nothing  more  than  reasonable  rule  and  regulation,  and  that  in  view 
of  the  several  questions  involved,  the  officers  to  be  elected,  the  ques- 
tion of  prohibition,  the  question  of  minority  representation,  the 
question  of  capital  location,  these  make^this  a  reasonable  regulation 
to  be  made  at  the  present  time  and  under  the  circumstances  under 
which  this  election  will  be  held.  There  can  be  no  question  about  it. 
Does  it  decrease  the  qualification  of  the  voter  in  any  sense?  No, 
not  at  all.  It  does  not  prescribe  the  qualifications  of  a  voter,  simply 


AUSTRALIAN  BALLOT  319 


embodies  the  rules  under  which  the  election  shall  be  conducted 
without  infringing  at  all  upon  the  voters  qualification.  They  are 
the  same  as  the  laws  of  the  Territory  prescribe. 

Mr.  Sherwood:  If  a  county  or  towYi  refuse  to  furnish  the 
places  for  voters  would  they  be  compelled  to  provide  them? 

Mr.  Sterling:     They  might. 

Mr.  Sherwood:     Then  would  that  vote  be  received? 

Mr.  Sterling:  I  am  inclined  to  think  that  they  would  be  re- 
ceived so  far  as  that  is  concerned.  Now  as  to  whether  such  a 
ballot  will  be  received  or  not,  whether  this  is  complied  with,  I  say 
gentleman,  that  that  does  not  do  away  with  the  desirability  of 
rules  and  regulations  like  these. 

Suppose  we  do  not  conform  with  the  rules  and  regulations  in 
certain  polls  that  the  vote  is  received  without,  I  say  that  these  places 
will  be  comparatively  few.  The  intent  will  .be  for  the  most  part 
to  follow  the  rules  and  regulations  prescribed  in  this  amendment 
and  that  the  result  will  be  that  we  will  have  an  honest  and  pure 
election  on  account  of  these  rules  and  regulations. 

Mr.  Van  Buskirk:  Let  me  ask  a  question;  the  difficulty  that 
occurs  to  my  mind  is  this:  In  place  of  a  simple  regulation  a  man 
cannot  be  permitted  to  vote  any  ballot  except  those  tendered  by 
the  judges  of  election,  with  certain  initia's  upon  it.  Is  not  that 
legislation? 

Mr.  Sterling:  I  do  not  believe  that  is  legislation  in  conflict 
with  any  legislation  in  connection  with  the  subject.  The  tendency 
is  not  towards  disfranchisement  of  men.  He  has  a  ticket  with  all 
the  names  of  the  men  nominated,  printed  under  the  rules  and  regu- 
lations. It  is  his  privilege  to  change  that  ticket  as  he  desires. 

Mr.  Van  Buskirk:  Under  the  existing  laws  and  .rules  and 
regulations  on  the  subject  as  in  force  now  if  we  add  these  rules 
and  regulations,  isn't  it  legislation?  is  the  difficulty  that  arises 
in  my  mind. 

Mr.  Sterling:     I  do  not  believe  that  it  is. 

Mr.  Cooper:  I  desire  to  suggest  this,  gentlemen  of  this  Con- 
vention, if  this  amendment  can  have  any  force  at  all  it  must  go  to 
the  extent  of  repealing  the  election  law  of  this  Territory.  If  not 
the  gentlemen  who  favor  the  project  ask  every  gentlemen  who  is 
judge  of  election  at  the  coming  election  to  commit  a  crime  that  the 
statutes  of  this  Territory  provides  shall  be  punished  in  rrrtuin 
ways.  The  statutes  of  this  Territory  provide  that  certain  persons 


320  SOUTH  DAKOTA  DEBATES,   1889 

are  qualified  electors ;  that  they  can  vote  in  a  certain  way ;  that  if 
their  vote  or  ballot  is  duly  tendered  that  the  judges  of  election  must 
receive  it  and  that  if  they  refuse  to  receive  it  they  are  guilty  of  a 
crime  and  can  be  punished  for  so  doing.  The  question  that  it 
suggests  to  my  mind  is  first,  is  this  proposed  amendment  legislation, 
if  so,  does  it  conflict  with  the  laws  that  we  already  have  and  under 
which  we  would  operate  if  this  were  not  added  to  the  report  of  the 
Schedule  Committee?  Now,  the  statutes  of  the  Territory  provides 
over  the  age  of  twenty-one  years,  or  any  male  over  the  age  of 
twenty-one  years  who  has  declared  his  intention  to  become  a 
citizen  of  the  United  States,  has  the  right  to  vote  at  any  election 
within  the  Territory.  It  provides  what  his  ballot  shall  be;  that  it 
shall  be  upon  white  paper  with  the  name  of  the  candidates  and  the 
matters  to  be  voted  for  either  written  or  printed,  or  partly  written 
and  partly  printed.  *  I  desire  to  ask  the  gentlemen  of  this  Conven- 
tion that  if  a  qualified  elector  went  to  the  voting  precinct  within 
the  Territory  of  the  proposed  State  of  South  Dakota,  went  to  the 
polls  at  the  place  advertised  that  the  polls  would  be  open  and 
tendered  his  ballot  as  provided  by  the  statutes  of  this  Territory  and 
it  was  refused  by  the  judges  of  that  election  if  those  judges  would 
not  be  guilty  of  a  crime  and  they  could  not  be  punished?  I  ask 
any  gentleman,  if  under  our  laws  as  they  now  exist,  if  that  judge 
could  not  be  prosecuted,  convicted  and  punished.  I  received  no 
answer.  I  think  that  under  the  circumstances  'I  am  justified  in 
answering  it  myself  and  if  any  gentleman  does  not  agree  with  me 
I  will  like  to  have  him  correct  me  and  give  reason  for  such  corrections. 
My  idea  is,  gentlemen  of  this  Convention,  that  if  the  ballot  of  the 
qualified  elector  was  duly  tendered  in  the  proper  manner  and  was 
refused  by  the  judges  of  election  that  the  judge  who  refused  it  would 
be  guilty  of  a  crime  and  that  he  could  be  prosecuted,  convicted  and 
punished  under  the  laws  of  this  Territory  as  they  exist  at  the  pres- 
ent time,  because  I  do  not  believe  there  is  anything  in  the  Con- 
stitution as  it  now  stands,  anything  in  the  Omnibus  Bill  as  it  was 
presented  to  us,  anything  in  the  Constitution  as  it  will  stand  when 
finally  adopted  by  the  people  of  this  Territory,  that  repeals  the 
election  laws  of  this  Territory  as  to-day  ex'istant.  They  say  it  does 
not  strike  at  the  qualifications  of  the  elector.  We  will  presume, 
for  the  sake  of  the  argument,  that  this  Convention  deems  it- wise 
to  require  that  all  electors  shall  vote  upon  tickets  colored  red,  white 
and  blue  and  the  judges  of  election  at  the  coming  election  in  Octo- 


•  MR.  COOPER'S  VIEWS  321 

ber  shall  say  that  statutes  of  this  Territory  prescribes  that  the  bal- 
lots must  be  on  white  paper.  We  refuse  to  accept  your  ballot  be- 
cause it  does  not  comply  with  the  statutes  of  this  Territory  under 
which  we  are  voting;  we  won't  receive  them.  I  ask,  gentlemen  of 
this  Convention,  if  there  is  any  power  on  earth  to  punish  these 
judges  for  refusing  to  accept  that  ballot.  I  ask  you  in  the  name 
of  reason  and  common  sense  the  question,  and  ask  every  member 
of  the  Convention  that  if  this  Convention  authorizes,  nay  requires, 
that  a  man  would  so  vote  a  ballot  red,  white  and  blue,  I  ask  if  this 
man  is  not  disfranchised  ?  I  have  noticed  this  to  be  true  that  when 
men  are  so  very  free  to  allege  fraud  and  want  to  punish  crime  to 
such  a  great  extent  when  there  is  no  basis  for  it  that  they  are  willing 
yea  willing  and  sometimes  anxious  to  override  the  laws  themselves, 
to  commit  a  crime  themselves  and  compel  the  agents  of  the  gov- 
ernment under  which  they  live,  to  commit  crime.  I  am  not  talking 
upon  the  advisability  of  this  law  as  to  whether  or  not  it  \  ould  be 
a  good  thing  of  a  bad  thing.  I  believe  in  throwing  around  the 
election  everything  that  I  can  in  the  nature  of  restrictions  that  will 
protect  the  ballot  and  make  our  elections  pure ;  I  would  be  in  favor 
of.  a  law  that  would  prevent  fraud  at  the  polls  and  would  throw 
around  the  voter,  conditions  that  would  isolate  him  from  men,  when 
in  the  act  or  casting  his  ballot.  I  would  be  in  favor  of  a  law  that 
would  make  it  a  misdemeanor  to  approach  a  voter  and  undertake 
to  talk  to  him  as  to  how  he  should  vote,  within  a  hundred  feet  of 
the  polling  place.  I  do  not  believe  this  Convention  has  the  power 
to  do  it  because  this  is  not  a  legislative  body.  I  cannot  vote  for 
it  because  when  I  became  a  member  of  this  Convention  I  registered 
an  oath  in  Heaven  that  I  would  do  my  duty  faithfully  and  well, 
just  as  I  understood  it.  I  do  not  believe  that  this  Convention  has 
the  power  to  do  it.  I  do  not  believe  that  this  Convention,  by  calling 
it  Rules  and  Regulations,  can  say  that  a  man  must  bring  the  initials 
of  any  man  or  set  of  officers  to  the  papers  to  the  polling  place  and 
show  them  to  certain  parties,  even  if  this  Constitutional  Convention 
desires  it  should  be  done,  before  he  can  cast  his  ballot,  and  why? 
Because  the  statutes  of  this  Territory  provide  another  manner  and 
another  wav  of  voting.  I  do  not  believe  we  can  change  these  laws 
of  this  Territory.  I  desire  to  ask.  gentlemen  of  this  Convention, 
where  t he-re  is  any  power  to  enforce  any  of  these  rules  and  regu- 
lations? Suppose  as  has  been  said  by  other  gentlemen  who  have- 
talked  upon  the  other  side  of  this  question,  many  towns  and  count- 


322  SOUTH  DAKOTA  DEBATES,  1889 

ies  in  South  Dakota  should  refuse  to  comply  with  this  amendment, 
would  you  refuse  their  vote?  Suppose  Tom,  Dick  and  Harry  all 
over  this  proposed  State  should  go  to  the  polls  and  say  I  want  to 
vote  upon  a  white  ballot.  I  will  write  the  names  upon  the  ballot 
I  want  to  vote  for;  I  do  not  want  the  namse  of  Republican  nor 
Democrat  upon  my  ticket ;  I  want  the  names  of  my  particular  can- 
didates upon  it.  It  is  refused;  what  will  be  the  result?  The  next 
five  years  will  be  blackened  with  the  prosecution  of  judges  and 
clerks  of  election.  I  say,  that  in  my  opinion  this  is  a  malicious 
scheme.  I  shall  ever  wish  to  prevent  any  deal  of  this  kind.  While 
I  will  go  to  as  great  length  as  any  member  of  this  Convention,  when 
the  time  comes  that  we  can  throw  around  the  ballot  box,  legally, 
new  protection  and  safeguards  that  will  insure  purity  in  our  elec- 
tions, not  criminally  but  legally,  I  am  heartily  in  favor  of  that  ac- 
tion at  the  proper  time  and  under  the  proper  conditions.  I  am  not 
in  favor  of  this  Constitutional  Convention  assuming  that  perogative. 
The  members  of  this  Convention  do  not  even  understand,  I  do  not 
believe,  do  not  even  understand  the  working  of  this  amendment.  I 
never  lived  in  Australia,  nor  Canada,  nor  England;  I  don't  know 
what  it  is,  but  it  seems  to  me  that  it  is  altogether  "too  English  you 
know."  I  believe  in  this  Union ;  I  believe  in  national  independence ; 
I  believe  in  this  country ;  I  believe  that  when  the  time  comes  when 
they  have  got  the  power  and  right  to  do  it,  the  people  will  go  to 
work  and  declare  a  bill  of  this  kind  if  it  is  necessary.  They  will 
do  it  in  a  legal  way  and  then  it  will  be  effectual.  But  if  we  assume 
to  legislate  in  this  manner  it  will  be  illegal  and  you  at  the  same  time 
commit  a  crime  yourselves  and  ask  every  judge  of  election  to  commit 
a  crime  and  at  the  same  time  place  upon  yourselves  the  burden  of 
carrying  the  prosecution.  It  must  necessarily  fail. 

Mr.  Humphrey:  It  is  not  my  purpose  to  enter  into  a  legal 
discussion  of  this  question  nor  even  to  make  small  of  the  arguments 
that  have  been  presented  for  I  have  been  very  much  edified  by  them. 
The  few  words  I  propose  to  say  will  be  in  explanation  of  the  vote 
I  shall  cast.  While  I  am  second  to  none  in  my  desire  for  protection 
of  the  ballot  box,  while  I  am  in  perfect  sympathy  with  every  effort 
to  do  that,  the  question  of  power,  in  my  judgment,  comes  under  this 
Federal  law  in  this  clause.  I  will  say  in  regard  to  the  Territorial 
law  in  regard  to  regulating  elections  and  as  far  as  any  regulation 
that  this  Convention  may  stipulate  or  pretend  to,  or  any  regulation 


MR.  HUMPHREY  323 


now  required  by  the  laws  of  the  Territory,  they  in  no  manner  dis- 
franchise anyone.  This  is  simply  a  method  of  procedure  in  casting 
the  vote.  The  latter  part  of  the  3rd  clause  has  been  read  here  to 
substantiate  the  grounds  that  the  ratification  of  the  Constitution 
must  be  under  the  same  restrictions  as  an  election  of  delegates  to 
this  Convention. 

In  the  sentence  preceding  that  I  find  specified  the  restrictions  un- 
der which  the  delegates  to  this  Convention  were  to  be  elected  and  the 
point  to  my  mind  is  this:  I  find  there  are  two  different  regulations 
for  two  different  purposes, — the  one  for  the  election  of  delegates 
in  which  it  says  the  delegates  shall  be  elected  and  the  returns  made 
in  the  same  manner  as  prescribed  by  the  laws  of  the  Territory. 
Now  when  we  come  to  the  ratification  of  the  Constitution  it  shall 
be  under  such  rules  and  regulations  as  this  Convention  determines. 
Now  then,  we  would  not  be  permitted  under  that  clause  to  make 
any  restriction  or  regulation  different  from  the  Territorial  law  for 
any  other  purpose  than  the  adoption  of  the  Constitution,  in  my 
judgment.  If  we  adopted  this  amendment,  we  would  require  two 
elections, — one  to  vote  for  the  officers  and  one  for  the  adopting  of 
the  Constitution.  I  think  that  that  is  the  only  thing  to  which  we 
could  apply  it ;  that  is  the  only  point  in  which  we  have  the  power 
to  adopt  the  regulations  or  restrictions  other  than  those  provided 
by  Territorial  law,  if  we  elect  officers  at  the  same  time.  There  is 
no  question  about  the  legality  of  our  providing  for  an  election, 
but  unless  we  provide  for  two  elections  we  could  not  adopt  this 
amendment,  and  not  being  in  favor  of  two  elections,  I  would  not 
vote  for  this  amendment. 

Mr.  Young:  Under  the  influence  of  its  personal  oratory  and 
under  the  influence  of  some  of  the  doctrines  of  some  of  the  speakers, 
I  really  expected  to  see  this  Convention  break  away  into  the  greatest 
enthusiastic  uproar.  Springer  builded  better  than  he  knew.  I 
have  just  two  points  to  make:  One  is,  that  it  is  not  the  right  or 
duty  to  undertake  to  seek  an  enumerated  power  to  make  this  regu- 
lation in  the  Enabling  Act.  This  is  part  of  a  Schedule;  this  is  not 
a  part  of  the  Constitution,  and  from  the  very  nature  of  the  Con- 
stitution" under  which  that  Enabling  Act  was  passed,  why  it  would 
be  just  monstrous  to  enumerate  the  powers  under  which  we  should 
work  in  drawing  up  a  Schedule  and  Ordinance.  These  specifically 
enumerated  powers  are  the  strict  limitations  under  which  we  have 


324  SOUTH  DAKOTA  DEBATES,   1889 

been  working  and  suffering  here.  They  were  brought  about  and 
had  reason  only  on  this  ground,  that  the  people  of  that  part  of  the 
Territory  of  Dakota  that  formed  the  State  of  South  Dakota  had 
ratified  the  Constitution  of  1885.  A  delegated  body,  such  as  this, 
has  nothing  in  particular  to  do  with  it  except  those  things  as  the 
commands  in  the  Act  require.  They  did  not,  however,  ratify  the 
Schedule  and  Ordinance ;  it  was  understood  that  that  disappeared 
with  the  action  they  had  in  1885  and  that  as  far  as  the  Schedule  and 
Ordinance  was  concerned  we  had  full  plenary  power  as  a  body,  to 
bridge  over  this  somewhat  revolutionary  state  of  things.  The  idea 
of  our  laboring  under  delegated  powers,  drawing  a  Schedule  and 
Ordinance  is  altogether  ou,t  of  any  reason,  because  here  we  are 
framing  a  Constitution  and  we  are  not  supposed  to  have  the  powers 
of  ordinary  State  legislation.  We  are  not  tampering  with  the  Con- 
stitutional Act  because  the  people  o  the  State  have  expressed 
themselves  upon  that  point  and  therefore  our  hands  are  off  from 
the  Constitution  but  when  it  comes  to  the  Schedule  and  Ordinance 
then  we  have  all  the  power  which  "should  be  left  to  a  people  acting 
as  a  body  politic  which  is  about  to  assume  the  position  of  one  of  the 
dignified  states  of  the  Union.  Now,  just  one  other  point, — the 
point  I  make  is  that  it  is  not  our  duty  to  take  or  look  for  any  dele- 
gated, distinctly  enumerated  powers  in  the  Enabling  Act  in  draw- 
ing up  these  rules  and  regulations  in  our  Schedule  and  Ordinance; 
the  other  is  that  we  are  not,  in  our  Schedule  and  Ordinance,  draw- 
ing up  or  prescribing  the  qualifications  of  voters.  We  are  not, 
because  there  is  something  of  a  weak,  diluted  Australian  System 
of  voting.  The  Australian  Ballot  System  has  been  considered  by 
the  State  Legislatures,  I  think  by  every  State  Legislature  in  the 
Union.  This  Australian  Ballot  System  has  been  adopted  by  the 
State  Legislatures  of  at  least  twelve  states  without  requiring  per- 
haps an  amendment  to  the  State  Constitution,  so  that  therefore  any 
modified  form  of  the  Australian  System  does  not  presume  additional 
qualifications  of  voters  and  as  this  system  has  been  adopted  by  the 
different  States  without  requiring  an  amendment  of  the  State 
Constitution,  it  cannot  be  construed  into  any  different  qualifications 
for  the  voters.  The  qualification  of  voters  is  always  prescribed 
in  the  Constitution  of  the  different  states  and  as  the  adoption  in 
these  different  States  of  this  system  of  voting  did  not  bring  about 
an  amendment  of  that  Constitution  I  see  perfectly  clear,  there  is 


CARL  G.  SHERWOOD  325 


nothing  like  an  additional  qualification  added  to  the  voters  in  tha 
adoption  of  this  amendment. 

Mr.  Sherwood:  I  desire  to  say  this  as  a  closing  proposition. 
I  asked  the  gentleman  from  Bon  Homme,  Mr.  Williams,  what  effect 
this  would  have  upon  questions  where  the  counties  refused  to  hold 
this  election,  and  as  an  answer,  as  I  understood  him  to  say,  tha 
they  would  not  be  compelled  to  hold  them  under  this  Australian 
System  unless  they  desired  to  do  so.  The  same  was  substant  ally 
answered  by  the  gentleman  from  Spink.  The  object  of  this  system, 
if  it  has  an  object  at  all,  is  to  reach  those  localities  where  frauds 
at  the  ballot  are  known  to  have  been  perpetrated.  I  admit  that  any 
rule,  or  restriction,  anything  that  this  Convention  would  pass, 
would  be  perhaps  heeded  and  obeyed  carefully  as  a  rule  in  this  State 
of  South  Dakota,  wherever  the  Board  of  Township  officers  lived 
whose  purpose  and  object  was  to  defy  this  law  while  there  was  evi- 
dently an  intent  to  defraud  at  the  ballot  box  at  hat  place  if  they 
was  no  power  that  would  compel  them  to  yield  to  this  7aw  there 
would  find  the  law  would  be  an  absolute  nullity  and  of  no  effect 
whatever.  If  that  is  true,  then  this  law  we  are  considering,  if  it 
pass  this  Conven  ion  is  going  into  effect  where  there  w  1  be  no 
violation  of  the  law,  going  to  be  set  aside  in  all  that  portion  of  the 
country  where  there  would  naturally  be  violation  of  the  law.  I 
desire  to  say  that  I  am  in  full  sympathy  with  every  effort  to  throw 
every  safeguard  around  the  ballot  box.  I  think  if  this  Convention 
had  the  power  they  might  pass  these  rules  and  regulations.  I  be- 
lieve as  the  gentleman  who  has  preceded  me,  that  they  have  not 
the  power  to  enforce  this  regulation  to  the  extent  of  going  into 
these  preeincts  where  the  law  would  be  violated  and  compel  it  to 
be  respected  there;  hence  I  shall  vote  against  the  amendment. 

Mr.  Willis:  I  begin  to  see  light  a  little;  I  begin  to  find  for  nix- 
own  purposes,  for  the  purposes  of  determining  my  own  convictions 
on  this  subject;  I  wrant  light  upon  the  one  point  of  authority, 
whether  or  not  we  have  the  authority.  I  have  felt  within  myself 
— of  course  I  could  not  .express  it  judicially, — I  have  sort  jot"  felt 
within  myself  somehow,  even  with  the  arguments  with  which  we 
have  been  regaled  on  this  floor,  to  be  impressed  with  the  conviction 
that  the  adoption  of  this  amendment ,  either  by  intention  <""  in  fact . 
was  no  restriction  upon  anybody's  ballot ,  upon  the  form  of  any- 
body's ballot.  The  idea  to  me  is  exceedingly  far-fetched.  I  tan- 
not  connect  it  as  having  any  force  whatever  in  this  connection.  I 


326  SOUTH  DAKOTA  DEBATES,   1889 

have  a  feeling  way  down  within  me  that  the  mere  presentation  of 
that  argument  is  a  superfine  sort  of  suggestion  of  the  motive  that 
may  determine  the  position  of  this  amendment.  I  am  exceedingly 
glad  for  this  little  light  from  these  lawyers.  Of  course  it  is,  this 
great  work  is  prescribed  by  Bill  Springer's  bill.  The  great  work 
that  we  have  been  elected  to  do  here  has  been  such  as  to  give  most 
peculiar  concern  to  the  lawyers  and  the  judges.  We  preachers 
and  the  other  fellows  have  not  had  much  difficulty  and  we  feel  proud 
we  have  this  Convention  and  that  we  have  a  part  in  it.  We  feel 
that  it  was  particularly  now,  the  lawyers  and  judges  that  we  want 
to  hear  from  upon  this  one  particular  point  of  our  authority.  I 
have  no  sympathy  with  anybody  who  is  weak-kneed  at  all  when  it 
comes  to  this  question  of  throwing  any  rational  safeguard  around 
the  ballot  box.  If  there  is  anything,  any  subject  that  is  popular 
today  and  that  is  momentiously  gaining  in  popularity  it  is  the 
question,  the  ballot  box  reform.  There  may  be  some  here  who  are 
not  Australians  who  recognize  the  necessity  of  reform  in  the  Amer- 
ican ballot  system,  to  whom  the  terrorizing  methods  employed  in 
some  parts  of  our  fair  country  are  perfectly  familiar,  to  whom  even  the 
recital  of  blackest  murder  perpetrated  at  the  polls  does  not  cause 
a  start  of  surprise  who  dare  stand  up  and  speak  against  the  reform 
of  the  ballot  box,  but  I  doubt  it.  If  there  is  anything  that  is  dear 
to  the  average  American  it  is  the  right  of  free  ballot,  but  enough 
for  that.  The  one  point  is,  have  we  authority ;  are  we  simply  a  set 
of  manikins  dangling  upon  wires  adjusted  by  Bill  Springer 'with 
automatic  arrangement  that  with  regular  time  and  rhythm  go 
through  our  set  of  dances  and  contortions?  We  are  not  that  sort 
of  a  crowd.  We  want  something  provided ;  call  it  Australian  System 
if  you  will.  We  are  not  trying  to  restrict  honest  men  at  all.  There 
is  nothing  that  can  be  so  construed,  except  by  the  most  determined, 
I  may  say  mendatious  distortion  to  any  attempt  on  the  part  of 
anybody  to  prevent  Jim  Jones  or  Pete  Smith  from  voting  as  he 
pleases.  Anything  of  that  characterization  is  perfectly  mendatious 
and  what  we  want  is  light  on  this  question  of  authority.  The 
lawyers  disagree,  and  when  lawyers  and  doctors  disagree  then  we 
must  depend  upon  our  own1  good  common  sense  in  great  measure 
determining  these  questions.  Congress  showed  us  no  favor  in 
this ;  this  Convention  is  doubtless  as  respectable  as  the  othe  and 
the  other  as  respectable  as  this.  At  least  we  will  allow  this  with 


AUSTRALIAN  BALLOT  327 


a  great  deal  of  generosity.  Congress  did  not  say  so  probably  for 
this  you  will  give  us  credit.  Lawyers  disagree  upon  this  proposition ; 
I  do  not  think  we  are  ready  to  vote;  I  do  not  want  this  dropped. 
If  1  judge  the  state  of  the  Convention  pulse  correctly,  taking  into 
consideration  the  hour,  I  think  it  would  down.  I  would  hardly 
know  just  how  to  vote  myself.  I  think  we  ought  to  vote  upon  this 
question  intelligently.  I  move  we  defer  further  consideration  of 
this  question  until  eight  o'clock  tonight. 

Which  motion  received  a  second  and  upon  being  put  to  a  vote, 
prevailed. 

Mr.  Williams:  I  move  that  when  wre  adjourn  we  adjourn  to 
meet  at  eight  o'clock  this  evening.  Carried. 

Mr.  Peck:     I  move  that  we  do  now  adjourn. 

The  Chairman:  The  gentleman  from  Hamlin  moves  that  the 
Convention  do  now  adjourn ;  those  favoring  this  motion  please  make 
it  known  by  saying  aye.  The  motion  prevails ;  the  Convention  stands 
adjourned  until  eight  o'clock  this  evening. 

Hall  of  the  Constitutional  Convention,  Sioux  Falls,  Dakota, 
Friday,  July -26th,  1889,  8  P.  M.  Convention  re-assembled  pur- 
suant to  adjournment. 

The  President:     Will  Colonel  Jolley,  of  Clay,  take  the  chair. 

Mr.  Jolley  (as  Chairman):  Gentlemen  of  the  Convention,  the 
question  is  upon  the  adoption  of  the  amendment  offered  by  the 
gentleman  from  Hamlin.  What  is  the  pleasure  of  the  Convention? 

Mr.  Anderson  (of  Hand) :  Inasmuch  as  there  is  some  question 
as  to  the  wording  of  the  amendment  before  the  Convention,  I  call 
for  the  reading  of  the  amendment  as  it  stands  tonight. 

The  clerk  reads  the  amendment. 

RULES  REGULATING  THE  ELECTION  TO  BE  HELD  UNDER  THE  AU- 
THORITY OF  THE  ENABLING  ACT  FOR  THE  ADOPTION  OR  RE- 
JECTION OF  THE  CONSTITUTION  AND  THE  ARTICLE    SEPARATELY 
SUBMITTED  THEREWITH  AND  THE  REPRESENTATIVES  IN  CON- 
GRESS; ALSO  STATE  AND  JUDICIAL  OFFICERS  FOR  SOUTH  DAKOTA. 
SEC.   1.     That  at  the  election  to  be  held  on  the  first   day  of 
October,  1889,  the  election  laws  now  in  force  in  the  Territoryof 
Dakota  shall  apply  to  and  govern  such  election  except  as  herein 
after  specially  provided. 

SEC.  2.  Nominations  for  State  officers,  Representatives  ia 
Congress  and  Judges  of  the  Supreme  Court  shall  be  made  by  u in- 
State  Convention  and  certified  to  by  the  Chairman  and  Secretary 
of  such  Convention,  according  to  form  number  OIK-  (1 )  hereinafter 


328    '  SOUTH  DAKOTA  DEBATES,   1889 

provided,  or  by  any  three  hunderd  (300)  legal  voters  in  South  Da- 
kota attaching  their  names  to  a  paper  nominating  candidates  and 
filing  the  same  with  the  Territorial  Secretarv. 

SEC.  3.  Nominations  for  members  of  the  State  Legislature, 
Judges  of  the  Circuit  Court  and  Judges  of  County  Courts  shall  be 
made  by  any  convention  held  in  legislative  and  judicial  districts 
or  county  for  which  any  such  officer  is  to  be  elected,  and  certified 
to  by  the  Chairman  and  Secretary,  according  to  form  No.  2.  here- 
inafter prescribed,  or  by  any  one  hundred  legal  voters  of  any  legis- 
lative or  judicial  district  or  county,  by  attaching  their  names  to  a 
paper  nominating  such  officers,  and  filing  the  same  with  the  County 
Clerk  or  County  Auditor  to  which  such  nominations  refer. 

SEC.  4.  All  certificates  of  nominations  and  nominating  papers 
provided  for  in  Section  Two  (2)  shall  be  filed  with  the  Territorial 
Secretary  by  the  fifteenth  day  of  September,  and  all  those  provided 
for  in  Section  Three  (3)  shall  be  filed  with  the  County  Clerk  or 
County  Auditor  by  the  twentieth  day  of  September,  1889,  and  no 
certificate  of  nomination  or  nominating  papers  shall  be  acted  upon, 
except  accompanied  with  the  consent  in  writing  of  the  person  or 
persons  therein  nominated,  provided  that  in  case  of  death  or  resig- 
nation, the  authority  making  such  nomination  shall  be  permitted 
to  fill  such  vacancy  by  a  new  nomination. 

SEC.  5.  The  Territorial  Secretary,  on  the  receipt  by  him  of  the 
nominating  papers  hereinbefore  mentioned,  shall  forthwith  transmit 
true  copies  of  the  same  to  the  County  Clerks  or  County  Auditors  of 
the  several  counties  in  South  Dakota. 

SEC.  6.  The  County  Clerk  or  County  Auditor  rhall.  after  the 
expiration  of  the  time  for  receiving  the  nominating  papers,  forth- 
with cause  to  be  printed  such  a  number  of  ballot  papers  as  will  be 
sufficient  for  the  purpose  of  election,  and.the  number  necessary  for 
each  polling  place  shall  be  bound  or  stitched  in  a  book  of  convenient 
form,  and  the  County  Clerk  or  County  Auditor  shall  cause  to  be 
printed  in  English,  in  large  type,  on  cards,  instructions  for  the 
guidance  of  voters  in  preparing  their  ballot  paper;  such  Clerk  or 
Auditor  shall  furnish  ten  (10)  copies  of  such  instructions  to  the 
Jvidges  of  such  election  precinct,  and  said  Judges  shall  cause  them 
to  be  posted  both  inside  and  outside  of  the  polling  place,  and  said 
County  Clerk  or  County  Auditor  shall,  as  provided  by  law,  cause  to 
be  delivered  to  the  proper  Judges  of  election  the  ballot  box  and  all 
poll  books  now  by  law  required  or  by  this  ordinance  required  to 
conduct  and  complete  the  election,  also  the  ballot  papers,  at  least 
two  (2)  days  before  polling  the  vote ;  and  shall  cause  to  be  published 
in  each  newspaper  in  the  county  a  true  copy  of  the  ballot  paper  and 
card  of  instructions,  said  publication  to  be  in  the  last  issue  of  said 
papers  before  the  day  of  voting. 

SEC.  7.  Every  ballot  paper  shall  contain  the  names  of  all  can- 
didates for  Representatives  in  Congress,  State  and  Judicial  officers, 
and  members  of  the  Legislature,  and  the  name  of  the  political  party 


AUSTRALIAN  BALLOT  AMENDMENT  329 


to  which  each  candidate  belongs;  ass<>  tin-  form  of  the  ballot  for  the 
adoption  or  rejection  of  the  Constitution  and  the  articles  separately 
submitted  therewith  as  provided  in  this  ordinance. 

SEC.  8.  Each  polling  place  shall  be  furnished  with  a  sufficient 
number  of  compartments,  in  which  each  voter,  screened  from  ob- 
servation, shall  mark  his  ballot  paper,  and  a  guard  rail  so  con- 
structed that  only  persons  within  such  rail  can  approach  within 
ten  ( 10)  feet  of  the  ballot  box,  and  it  shall  be  the  duty  of  the  Judges 
of  election  in  each  polling  place  to  see  that  a  sufficient  number  of 
such  places  be  provided  and  shall  appoint  a  person  to  guard  the 
entrance  to  such  compartments  and  he  shall  be  paid  the  same  as 
Judges  of  election. 

SEC.  9.  The  voters  being  admitted  one  at  a  time  for  each  com- 
partment where  the  poll  is  held  shall  declare  his  name,  and  ~v\  hen 
permitted  by.  the  Judges  to  vote,  his  name  shall  be  entered  on  the 
voters'  list  and  he  shall  receive  from  one  of  the  Judges  of  elee  n«n 
a  ballot  paper  on  the  back  of  which  the  initials  of  one  of  the  Judges 
of  election  shall  be  so  placed  that  when  the  ballot  paper  is  folded 
they  can  be  seen  without  opening  it,  and  the  Judges  of  election  shall 
instruct  him  how  to  mark  his  ballot  paper. 

SEC.  10.  The  voter,  on  receiving  his  ballot  paper,  shall  forth- 
with proceed  to  one  of  the  compartments  of  the  polling  station  and 
there  without  undue  delay,  not  exceeding  five  minuets,  mark  his 
ballot  paper  by  putting  a  cross  (X)  in  the  space  to  the  right  hand 
side  of  the  name  of  the  person  for  whom  he  desires  to  vote  and  if  he 
desires  to  vote  for  any  person  who:-e  name  is  not  on  his  ballot  paper 
he  may  write  or  paste  on  his  ballot  paper  the  name  of  the  person 
for  whom  he  desires  to  vote,  and  shall  thenfoldup  his  ballot  paper, 
so  that  the  initials  on  the  back  can  be  seen  without  opening  it 
ascertain  that  the  initials  are  on  it  and  that  it  is  the  same  ballot 
paper  given  to  the  voter,  and  shall  then  place  it  in  the  ballot  box 
and  the  voter  shall  quit  the  polling  compartment  as  soon  as  his 
ballot  paper  has  been  put  in  the  ballot  box. 

SEC.  11.  The  Judges  of  election,  on  the  application  of  any 
voter  who  is  unable  to  vote  in  the  manner  provided,  shall  assist 
such  voter  by  marking  his  ballot  paper  in  the  manner  d  CM  red  by 
such  voter  in  the  present  e  of  the  persons  permitted  to  be  in  the  c -om- 
partment  or<  upied  by  the  Judges  and  no  others,  and  shall  place 
such  ballot  paper  in  the'  ballot  box.  and  when  the  Judges  of  e!e(  tion 
shall  not  understand  the  language  spoken  by  the  voter  claiming  to 
vote,  they  shall  swear  an  interpreter,  who  shall  be  the  means  of 
communication  between  them  and  the  voter  with  reference  to  all 
matters  required  to  enable  su<  h  \  oter  to  v  ite. 

SEC.  12.  A  voter  who  has  inadvertently  dealt  with  the  ballof 
paper  given  him,  in  such  manner  that  it  cannot  be  conveniently 
used,  may,  on  delivering  the'  same  to  the  Judge's,  obtain  another 
ballot  paper  in  place  of  that  so  delivered  up. 

SEC.  13.      Any  voter  refusing  to  take  the-  oath  or  affirmation  <>f 


330  SOUTH  DAKOTA  DEBATES,   1889 

qualification  as  required  by  law,  when  requested  to  do  so,  shall  not 
receive  a  ballot  paper  or  be  permitted  to  vote. 

SEC.  14.  No  person  shall  be  allowed  to  take  his  ballot  paper 
out  of  the  polling  place,  nor,  except  as  in  the  case  provided  for  by 
Section  Eleven  (11),  to  show  it  when  marked  to  any  person  so  as 
to  allow  the  name  of  the  candidate  for  whom  he  has  voted  to  be 
known,  and  any  voter  who  violates  or  refuses  to  comply  with  this 
ordinance  shall  not  be  permitted  to  vote. 

SEC.  15.  In  addition  to  the  Judges  and  Clerks  of  election, 
one  watcher  at  each  polling  precinct  for  each  political  party  pre- 
senting a  candidate  or  candidates  for  the  suffrage  of  the  voters  and 
no  others  shall  be  permitted  to  be  in  the  compartment  occupied  by 
the  Judges  on  election  day,  and  such  Judges,  Clerks  and  Watchers 
shall,  before  entering  upon  their  respective  duties  take  and  subscribe 
to  the  following  oath  or  affirmation; 

I,  John  Jones,  do  solemnly  swear  (or  affirm)  that  I  will  keep 
secret  the  names  of  the  candidates  for  whom  any  voter  may  have 
marked  his  ballot  paper  in  my  presence  at  this  election,  so  help  me 
God. 

SIGNED:  J.  J. 

Sworn   or    (affirmed)   before   me   at this 

first  day  of  October,  1889. 

Justice  of  the  Peace  or  Judge  of  Election. 

SEC.  16.  Immediately  on  the  close  of  the  poll  the  Judges,  in 
the  presence  of  the  Clerks  of  Election  and  such  of  the  watchers  and 
voters  as  desire  to  be  present,  shall  open  the  ballot  box  and  proceed 
to  count  the  number  of  votes  for  each  candidate;  in  doing  so  they 
shall  reject  all  ballot  papers  which  have  not  been  supplied  by  them 
as  Judges  of  said  election,  all  ballots  by  which  more  candidates  have 
been  voted  for  than  there  are  officers  to  be  elected ;  also  those  upon 
which  there  is  any  writing  or  mark  by  which  the  voter  can  be  iden- 
tified; all  the  ballots  voted  and  counted,  and  those  rejected,  those 
spoiled  and  those  unused,  shall  be  put  into  separate  envelopes,  and 
all  those  parcels  shall  be  endorsed  so  as  to  indicate  their  contents, 
and  be  placed  in  the  ballot  box  and  a  return  of  the  result  of  the 
election  at  the  polling  precinct  shall  be  made  to  the  County  Clerk 
or  County  Auditor,  as  now  required  by  law  for  the  election  of  mem- 
bers of  the  Territorial  Legislature. 

SEC.  17.  All  expenses  incurred  under  these  rules  to  be  a  charge 
against  the  county  and  audited  and  paid  as  other  claims  against 
the  county. 

Mr.  Anderson  (of  Hand):  I  shall  not  attempt  to  discuss'the 
legal  aspect  of  this  question  at  this  time  but  I  wish  to  state  some  of 
the  reasons  to  this  Convention  why  I  am  in  favor  of  this  amend- 
ment. In  the  first  place  the  people  whom  I  represent  are  all  unan- 
imously in  favor  or  this  proposition,  upon  the  adoption  of  a  prop- 


MR.  ANDERSON  OF  HAND  331 

osition  of  this  kind,  possibly  with  the  exception  of  a  few  political 
bulldozers  and  ticket  peddlers  at  two  dollars  per  day  will  receive 
the  support  of  most  men;  men  who  boast  judiciously  and  expe- 
ditiously  selling  their  votes  for  every  election  of  the  last  seven  years 
will  not  be  pleased  should  this  Convention  pass  this  amendment.  It 
is  for  the  purpose  of  blocking  the  wheels  for  this  class  of  men,  gentle- 
men of  the  Convention,  that  I  am  in  favor  of  the  adoption  of  this 
proposition.  At  the  last  general  election  held  in  our  county,  in 
one  township  it  is  estimated  that  there  was  expended  to  purchase 
votes,  $1100.  and  gentlemen,  it  was  openly  and  publicly  done  in  a 
great  many  cases.  In  another  township  in  our  county  and  they 
cast  votes  in  that  township,  there  was  as  high  as  $1000.  expended 
to  purchase  and  \nfluence  votes.  Let  me  say  to  you  gentlemen, 
that  in  that  particular  township,  not  receiving  the  price  for  their 
votes,  at  the  last  election  held  in  our  county  for  the  election  of  dele- 
gates who  are  here  on  this  floor,  they  refused  to  vote  for  the  candi- 
dates who  were  before  them  for  election,  but  met  in  Convention  and 
instead  of  voting  the  ticket  that  they  had  provided,  they  voted  for 
cat  li  other,  and  when  questioned  as  to  why  they  adopted  that 
report,  their  reply  was:  "Why,  the  candidates  didn't  put  up 
anything;  they  didn't  even  come  around  and  set  up  the  beer." 
Gentlemen  of  the  Convention,  this  is  only  a  part  of  the  state  of 
affairs  existing  in  the  Territory  of  Dakota.  I  am  informed  that  it 
exists,  not  only  in  the  County  of  Hand,  but  that  it  exists  in  other 
counties.  Now,  gentlemen  of  the  Convention,  the  opportunity 
is  offered  for  you  to  place  yourselves  upon  record  and  so  far  as  the 
legal  aspect  of  this  Convention  is  concerned,  I  am  satisfied  myself 
that  we  have  the  full  power  of  authority  to  adopt  a  proposition  of 
that  kind.  I  shall  not  detain  you  by  giving  my  reasons  for  having 
arrived  at  that  conclusion.  We  have  heard  a  good  deal  in  the  last 
four  or  five  years  about  the  purity  of  the  ballot,  an  honest  ballot 
and  a  fair  count,  and  you,  gentleman,  having  expressed  your  views 
of  an  honest  ballot  have  an  opportunity  tonight  to  place  yourselves 
upon  record  as  to  whether  or  not  you  are  in  favor  of  an  honest  ballot 
and  a  fair  count.  I  do  not  expect,  gentlemen  of  the  Convention, 
to  appear  in  public  again,  in  Hand  County  as  my  friend  from  Cod- 
ington  remarked, — this  is  my  last  appearance.  I  have  no  political 
ambitions,  aspirations,  and  if  I  had  I  belong  to  the  hopeless  mi- 
nority. But  I  do  wish  to  see  adopted,  a  plan  that  will  pivservr  tin- 


332  SOUTH  DAKOTA  DEBATES,   1889 

purity  of  the  ballot  box;  that  will  protect  the  voter,  the  laboring 
men.,  the  employees  of  the  corporations  in  an  independent  exercise 
of  the  right  of  suffrage.  I  hope  this  Convention  will  put  itself 
squarely  upon  the  records.  This  system  is  being  adopted  by  quite 
a  number  of  the  states.  I  prophesy  it  will  be  in  every  state  in 
this  Union.  Probably  gentlemen,  you  will  see  the  time  if  you  vote 
against  the  proposition  to  protect  the  ballot  you  may  be  ashamed  of 
the  vote  you  cast  against  it.  After  what  I  have  seen  practiced  in 
the  Territory  of  Dakota  I  do  not  intend  to  let  an  opportunity  pass 
to  cast  my  vote  in  this  Convention  upon  this  proposition  and 
squarely  in  favor  of  it. 

Mr.  Dickinson:  I  have  had  nothing  to  say  this  afternoon, 
because  I  have  had  considerable  to  say  in  the  Committee  in  the  con- 
sideration of  this  subject  and  because  I  was  very  anxious  to  see 
what  might  be  said  upon  the  other  side,  that  there  might  be  the 
fullest  expression,  the  strongest  expression  possible  in  opposition 
to  this  measure  which  has  been  proposed.  Mr.  President,  I  must 
say  that  I  was  amazed  at  the  tenor  of  the  arguments  and  upon  the 
result  of  the  arguments  upon  those  who  were  present,  gentlemen, 
who  have  been  active  as  I  have.  I  confess  freely,  I  myself  have 
been  active  in  the  endeavor  to  form  this  measure  and  secure  the 
adoption  in  this  Convention  of  these  rules.  For  by  the  tenor  of. 
these  addresses  delivered  this  afternoon  and  apparently  by  the 
conviction  produced  upon  the  minds  of  many,  we  may  be  open  to 
the  charge  of  committing  the  greatest  offense  against  the  rights 
and  interests  of  the  people  of  the  State  of  South  Dakota.  I  have 
been  contending,  not  for  attempts  to  provide  for  wholesale  bribery 
and  attempts  to  so  demoralize  and  corrupt  the  election  laws  that 
it  might  be  possible  to  illegally  vote  to  corrupt  the  vote  and 
thus  as  unerringly  as  the  sun  follows  dawn  to  place  a  stigma  upon 
the  fair  name  of  our  state  because  thereof.  But  have  been  contend- 
ing, Mr.  President,  by  an  honest  endeavor  to  provide  in  some  measure 
for  a  just,  honest,  pure  vote,  for  a  just,  true  and  fair  expression  of 
our  people  of  the  State  of  South  Dakota  and  their  will  in  reference 
to  certain  great  issues  that  come  before  us  in  the 'first  days  of 
October  next.  We  have  in  this  hall  as  high  and  honorable  and  rep- 
resentative a  body  of  men  as  you  could  get  together  and  we  are  met 
here  for  acting  or  proceding  upon  questions  of  vital  importance 
and  far  reaching  in  their  trend;  a  bodv  of  men  such  as  will  never 


MR.   DicKiNsoN  333 


come  together  again  in  the  history  of  this  State  from  now  on  to  the 
end  of  time,  taking  into  eons  deration  our  business,  (iravf  inter- 
ests over  which  the  hearts  and  minds  of  the  honest  people  of 
South  Dakota  burdened  and  anxious  and  the  decision  they 
desire  most  earnestly  shall  be  true  and  right  and  just; 
true  expression  of  the  minds  and  wills  and  purposes  and  in- 
tents of  the  people.  And  Mr.  Chairman,  )  am  not  a  lawyer,  but  I 
desire  to  call  attention  to  the  line  of  attempted  argument  that  has 
been  brought  up.  All  of  these  lines  of  arguments  and  this  outpour 
of.  eloquence  has  been  upon  us,  not  for  any  attempted  corrob-oration, 
not  for  anything  openly  unjust  because  we  are  attempting  to  pro- 
vide for  purity  and  a  just  expression  of  the  minds  and  will  f  the 
people.  The  force  of  the  arguments  to  this  proposition,  made  and 
proven  apparently  to  the  satisfaction  of  those  who  have  spoken, 
is  that  we  are  here  without  power  to  do  anything  for  the  protection 
of  the  ballot  box, 'but  I  wrould  venture  in  the  opinion  that  we  have 
the  power,  that  it  comes  to  us  from  three  fold  sources.  First,  that 
we  have  the  powers  delegated  to  us  in  this  Enabling  Act  from  the 
Congress  of  the  United  States  as  to  the  larger  parts  of  the  inter- 
sets  involved  in  the  election  this  fall.  There  has  been  no  dispute 
of  the  claim  that  we  have  the  power  and  even  those  who  have  spoken 
upon  the  other  side  have  conceded  that  we  have  the  power  as  to 
a  submission  of  the  Constitution  to  a  vote  of  the  people,  as  to  the 
submission  of  the  amendments  relating  to  the  minority  represent- 
tion,  as  to  the  submission  of  the  amendment  relative  to  Prohibition, 
as  to  the  submission  of  the  question  of  the  location  of  the  temporary 
seat  of  government;  there  is  no  question  but  that  Congress  gives  us 
full  power  to  make  rules  governing  the  election  relating  to  those 
topics  at  all.  It  is  conceded  by  every  lawyer  that  I  have  heard 
speak  upon  that  subject  that  it  was  a  part  of  ordinary  wisdom  o 
conclude  that  when  making  that  provision  it  was  intended,  when 
it  states  that  you  would  also  provide  election  at  the  same  time  for 
State  officers,  it  was  simply  presumed  to  say  that  if  we  made  laws 
for  governing  one  part  of  the  elec  tion,  it  might  be  presumed  to  i  ovu  r 
the  remainder  of  the-  issues  of  the  election  held  at  the  same  time 
but  there  is  one  consideration  that  I  wish  to  call  attention  to  and 
that  is  this:  Speaking  of  the  election  of  the  delegates  to  this  Con- 
stitutional Convention  in  the  election  of  the  14th  of  May.  the 
Enabling  Act  spe<  ilics  that  that  election  was  t"  take  place  under 


334  SOUTH  DAKOTA  DEBATES,   1889 

the  rules  of  the  Territory  of  Dakota.  Then  passing  from  the  Con- 
vention when  it  was  assembled,  was  required  to  submit  the  Con- 
stitution to  the  people,  says  that  they  may  vote  for  or  against  the 
Constitution,  under  such  rules  as  the  Convention  may  prescribe. 

Mr.  President,  why  is  it  that  the  Enabling  Act  specified  what 
election  laws  shall  govern  the  election  of  delegates  in  the  spring. 
I  venture  to  guess  that  it  was  to  determine  what  laws  should 
govern  because  there  would  be  no  body  in  session;  it  would  be 
before  the  Convention  had  existence ;  therefore  Congress  points  out 
what  laws'  shall  govern  and  when  we  are  assembled  in  Constitutional 
Convention  it  says  the  Convention  might  provide  rules  for  the  elec- 
tion upon  the  proposition,  and  when  we  come  to  the  provisions  of 
the  24th  section  of  the  Enabling  Act  for  the  election  at  the  same  time 
of  the  State  officers,  which  we  may  by  ordinance  provide  for  and 
for  the  judges  at  the  same  time.  Again  nothing  is  said  in  reference 
to  the  laws  that  shall  prevail  and  govern  the  election  of  State 
officers.  Why  is  the  Enabling  Act  silent  there?  I  take  it,  Mr. 
President,  that  it  is  because  it  was  deemed  that  this  Constitutional 
Convention,  having  come  together  and  having  been  thereby  em- 
powered to  provide  for  the  election  of  State  officers,  would  without 
provision  be  provided  with  power  to  make  the  rules  that  should 
govern  that  election.  It  was  silent  with  reference  to  the  body 
that  would  be  in  existence  and  failed  to  provide  for  those  election 
laws.  It  speaks  definitely  of  what  election  laws  should  prevail 
when  no  such  body  was  in  existence  and  when  we  come  together 
and  provide  for  the  election  of  officers,  here  it  leaves  us  to  oiirselves 
to  say  what  rules  shall  govern.  It  was  the  intention  that  those 
rules  should  be  the  rules  of  the  Territorial  election  laws,  if  that 
law  was  to  guide,  I  believe  that  that  would  have  been  definitely 
stated. 

The  Enabling  Act  has  not  been  carelessly  drawn.  What  I  say 
is  this:  Those  men  knew  what  they  were  doing.  I  believe  that 
they  knew  what  they  were  calling  into  existence.  This  Constitu- 
tional Convention,  made  up  of  select  representatives  of  the  people 
of  South  Dakota,  they  honored  us  and  honored  themselves  enough 
to  say  that  we  could  be  trusted  to  provide  them  ourselves.  You 
may  by  ordinance  provide  the  way  for  the  election  of  State  officers 
at  the  same  time,  by. ordinance, — and  that  ordinance  in  the  opinion 
of  the  best  lawyers  carries  with  it  the  power  to  pass  the  rules 


MR.   DICKINSON  335 


governing  the  election  as  well  as  the  power  to  submit  the  names  of 
the  officers  that  shall  be  elected  and  the  offices  that  shall  be  rilled. 
Now,  Mr.  President,  I  insist  upon  that  point,  that  if  it  had  been  as 
essential  as  these  men  would  have  us  believe  it  is,  they  would  be 
so  anxious  that  we  do  nothing  to  endanger  our  prospects  for  we 
must  not  forget  they  say  that  the  President  may  shut  us  out  at 
the  time  when  statehood  is  just  within  our  grasp.     If  it  had  been 
so  essential  that  point  would  not  have  been  left  unguarded.     We 
have  found  as  we  have  been  working  carefully  through  this  Con- 
stitution, we  have  found  our  point  carefully  guarded,  we  have  found 
that  they  made  no  great  mistakes.     I  can  easily  believe,  and  most 
thoroughly  and  sincerely    believe  that  even  had  Congress  gone  so 
far  as  to  say  that  we  might  have  provided  for  our  own  election  we 
could  have  been  safely  trusted  to  do  it  and  that  if  we  had  done  so 
we  would  have  conducted  the  election  under  the  Territorial  law. 
We  have  no  right  to  make  the  presumption  that  we  must  hold  the 
election  under  the  State  law.     This  language  is  compulsory  when- 
ever mention  of  Territorial  business  is  made  as  the  adoption  of 
the  Constitution  and  the  amendments  severally  submitted,  the 
extra  provision  for  the  temporary  location  of  the  capital  and  the 
like.     Mr.  President,  I  am  not  a  lawyer;  I  will  confess   that  I  com- 
menced studying  this  point  because  the  people  were  interested  and 
were  asking  questions  about  it,  whether  the  laws  of  the  Territory 
would  prevail,  away  last  March, — asking  about  that  and  anticipat- 
ing that  we  would  have  the  power  to  provide  the  rules  for  the  elec- 
tion.    I  will  confess  that  I  commenced  studying  it  myself  and  ask- 
ing the  opinion  of  every  lawyer  I  came  in  contact  with  and  have 
taken  it  to  every  man  that  is  recognized  as  being  authority  on  that 
subject.     I  have  in  case  after  case,  found  the  unhesitating  answer, 
that  it  gave  us  all  the  power  anybody  could  possibly  assume ;  that 
the  complete  power  was  our's  to  provide  for  this  ballot.     To  pro- 
vide for  an  honest  election  against  which  there  should  be  no  sus- 
picion or  taint  whatever.     Gentlemen,  I  would  have  such  a  rule 
here  today  as  a  body  representing  the  several  states  to  be.     We 
come  here  under  a  government  in  which  majority  rules  and  there 
is  under  the  God  of  Nations  no  higher  authority  than  the  will  of 
the  majority.     We  are  proud  of  it ;  we  want  that  the  majority  shall 
rule  in  this.     We  come  as  agents  of  and  representing  the  majority 
of  the  people  of  South  Dakota.     We  have  met  in  Convention  so  to 


363  SOUTH  DAKOTA  DEBATES,   1889 

speak,  as  embassadors  of  the  majority  of  the  people  of  South  Da- 
kota, cognizant  of  their  will  and  sentiments  and  we  are  supposed 
to  be  here  to  express  it  for  them  and  if  the  majority  of  the  delegates 
belonging  to  this  body  shall  deem  it  the  part  of  wisdom  and  within 
their  powers  and  province,  that  decision  will  be  the  decision  of 
the  people  of  South  Dakota.  Any  decision  or  vote  passed  here 
today  embodying  our  best  wisdom  and  discretion,  bearing  upon  its 
face  the  evidence  of  honesty  and  sincerity  of  purpose,  will  merit  and 
be  clothed  with  the  dignity  of  an  expression  of  the  wisdom  of  the  will 
of  the  people  of  South  Dakota  as  a  matter  of  law.  We  are  sent 
here  by  the  choice  of  the  people  to  make  or  finish  and  adopt  a 
Constitution  a  greater,  graver  or  more  serious  work  than  that  never 
has  been  enacted  in  the  history  of  any  nation  or  any  state.  They 
demand  that  of  us  and  expect  and  trust  us  to  do  that  and  if  the 
majority  of  this  Convention  I  say  shall  decide  that  it  is  wise  and 
best  to  pass  certain  election  laws  for  the  government  of  the  election 
this  fall  it  is  the  recommendation  and  expression  of  the  will  of  the 
majority  of  the  people  of  South  Dakota.  I  know  a  paltry  few, 
an  insignificant  few,  will  not  endorse  our  actions,  but  it  will  be  so 
recognized  by  the  people.  When  a  few  years  ago  the  Constitution 
of  1885  was  submitted,  when  we  had  no  State,  when  we  had  no 
authority,  when  we  had  no  power  but  that  which  the  people  gave 
us,  when  the  Constitution  was  provided  and  submitted,  we  had  a 
Schedule  and  Ordinance  providing  for  the  manner  of  election.  The 
people  solemnly  and  carefully  observed  those  rules  and  we  never  had 
a  more  conscientious  election  than  that  when  it  was  preceded 
under  by  the  people  who  recognized  it  as  the  expression  of  the  ma- 
jority. Mr.  President,  at  this  time,  when  graver  issues  are  at  stake, 
when  there  are  important  issues  to  be  decided,  I  venture  to  believe 
every  honest  delegate  upon  this  floor  agrees  with  me  that  when  we' 
go  before  our  people  with  this  amendment  as  a  part  of  our  Schedule 
and  Ordinance  that  the  people  will  respect  the  recommendation 
of  this  Constitutional  Convention ;  that  they  will  support  earnestly 
and  carefully,  respect  all  rules  for  that  election  that  we  recommend. 
For  they  know  this:  Some  of  the  delegates  here  on  this  floor  seem 
to  have  forgotten  that  this  is  not  in  the  interests  of  corruption,  is 
not  anything  dishonest,  anything  unseen ;  it  is  honest  and  expresses 
their  will ;  it  is  what  they  want.  They  want  to  do  away  with  some 
of  the  baneful  pernicious  practices  at  the  polls,  the  greatest  inter- 


MR.  DICKINSON  337 


ests  of  the  Territory  want  it  done ;  the  grSat  mass  of  the  people  of 
South  Dakota  are  loyal  to  civil  purity  and  are  opposed  to  bribery, 
corruption,  intimidation  and  fraud.  We  need  not  fear  to  trust 
ourselves,  Mr.  President,  to  trust  ourselves  to  the  people  for  any- 
thing that  we  enact,  as  I  say,  even  as  their  representatives.  We 
will  have  no  fear  to  submit  to  them  any  enactment  which  is  an 
honest  and  true  expression  of  their  minds  and  wills  to  their  suffrages 
in  the  election  in  October.  Mr.  President,  I  have  filled  with  wonder 
at  the  men  of  straws,  that  anxious  men,  members  of  this  Convention, 
have  set  up  and  made  war  upon  this  afternoon.  The  first  of  these 
is  the  one  where  it  is  said  that  if  we  passed  this  bill,  endorsed  this 
provision  and  adopted  these  rules  that  Mr.  President  Harrison,  when 
he  learns  that  these  were  the  rules  under  which  the  election  was 
conducted  will  refuse  to  admit  us  as  a  State.  Mr.  President,  I 
am  astonished  that  any  intelligent  man  will  undertake  to  make 
use  of  such  a  proposition.  That  we  made  an  honest  attempt  to 
secure  an  honest  election,  that  the  people  were  accustomed  to  vote 
by  this  means,  that  they  did  so  vote  by  the  rules  and  measures  that 
were  eancted  to  promote  purity  at  the  ballot  box  and  discounte- 
nance bribery,  intimidation  and  coercion;  therefore,  because  he  had 
reason  to  believe  that  the  election  pronuunced  the  expression  of  the 
sentiments  of. the  people  of  Dakota,  therefore,  he  would  refuse  to 
admit  the  State  into  the  Union.  I  would  say  attempt  it  if  the  bal- 
lot boxes  were  left  open,  then  left  as  they  have  been,  subject  to 
all  charges  of  corruption  that  they  have  been,  how  those  men  use 
that  insane  argument  and  bring  it  forward  expecting  any  intelligent 
man  to  believe  it  is  beyond  my  comprehension.  I  have  greater 
confidence  in  the  President  of  the  United  Staes  than  this.  I  would 
be  ashamed  to  even  meet  the  powers  that  be  if  I,  for  one  moment, 
believed  that  that  jeopardizes  the  causes  of  statehood  to  attempt 
to  have  a  pure  election  next  October.  The  other  man  of  straw 
that  has  been  set  up  here  is  this,  that  we  are  aiming  a  blow  at  the 
right  of  suffrage,  disfranchising  voters  by  prescribing  certain  rules. 
Mr.  President,  I  would  ask  any  man  on  this  floor,  who  is  disfran- 
chised by  this  movement.  A  re  we  opposed  to  any  rules  we  do  not 
feel  called  upon  to  com  ply  with  them,  we  do  not  take  tin-  trouble  to 
go  and  secure  a  ballot  or  if  the  officers  of  the  election  refuse  to 
prefer  charges  against  them.  The  cause  tomes  up  for  hearing. 
we  are  put  on  the  stand,  no  judge  in  South  Dakota  would  convict 


338  SOUTH  DAKOTA  DEBATES,  1889 

on  that  charge  (?).  Were  I  a  lawyer,  I  should  hesitate  very  much 
to  jeopardize  my  reputation  as  a  lawyer  by  such  a  statement  as 
that.  The  answer  would  be  and  the  answer  that  would  silence 
all  objections,  that  that  man  would  have  the  opportunity  to  take 
a  ballot  the  same  as  other  men  took  one,  that  was  prepared  for  him, 
that  contained  all  names  of  all  candidates  and  every  proposition 
to  be  submitted  to  the  people,  that  he  might  have  an  opportunity 
to  take  that  by  himself  and  without  being  overlooked,  and  without 
intimidation  or  coercion  to  make  it  right,  to  make  it  just  exactly 
what  he  wanted  it  if  he  was  not  pleased  with  the  regular  nominees 
to  strike  them  all  off  and  put  in  whatever  he  wranted.  He  could  go 
and  deposit  the  ballot  and  exercise  the  right  of  suffrage ;  one  man 
could  do  that  and  every  man  required  to  do  it.  Why?  In  order 
that  that  man  might  be  protected  in  the  free  exercise  in  his  own 
right  of  suffrage  and  demand  that  every  man  might  be  protected 
in  his  free  exercise  of  suffrage,  the  proposition  is  in  order  that  no 
man  can  hold  over  another  the  whip  and  use  intimidation  on  that 
if  he  did  not  vote  so  and  so,  such  and  such  would  be  the  result. 
On  the  other  hand,  going  by  himself  he  makes  up  the  ticket  as  he 
will  without  knowledge  of  anyone  and  beyond  power  of  anybody 
to  coerce  him  afterward.  This  is  protection  of  that  voter,  the  pro- 
tection of  every  voter,  this  is  freedom  secured  as  far  as  in  our  power 
to  secure  it ;  this  is  for  the  interests  of  that  man  and  every  man 
and  my  friend  here  whom  I  respect  and  whose  nationality  I  respect, 
would  be  deprived  of  no  right  of  suffrage.  He  would  have  every 
opportunity  to  vote  for  anybody  he  might  desire. 

Mr.  Zitka:  Not  if  he  voted  according  to  the  laws  of  this 
Territory. 

Mr.  Dickinson:  If  he  voted  as  every  other  voter  voted  and 
as  he  should  vote.  There  is  one  other  point,  Mr.  President,  that 
has  been  brought  up,  that  if  we  recommend  such  rules  and  the 
people  fail  to  pay  any  regard  to  them  it  has  been  openly  said  by 
those  who  may  be  citizens  of  this  town  that  it  would  not  be  respected 
in  Sioux  Falls  and  other  places  like  this  and  what  is  the  use  of  passing 
that  would  not  be  respected.  I  repeat  the  facts  stated  in  my  open- 
ing remarks  the  honest  careful  observation  of  the  former  Consti- 
tution I  have  firm  faith  in  the  people  of  South  Dakota,  that  they 
would  pay  no  less  deference  to  the  recommendations  and  rules  ap- 
pointed by  this  Constitutional  Convention.  Mr.  President,  there 


MR.  CLOUGH  TAKES  THE  FLOOR  339 

is  in  these  rules,  if  passed  by  this  body  the  power  of  self  endorse- 
ment. No  one  has  the  right  to  assume  in  Sioux  Falls  or  anywhere 
else  in  South  Dakota  the  people  in  South  Dakota  would  not  sustain 
us  in  this  amendment  passing  such  restrictions.  There  is  nowhere 
else  that  we  have  stronger  pleas  for  a  passage  for  this  or  a  similar 
measure  than  to  the  people- of  Sioux  Falls.  We  have  had  from  no 
other  locality  stronger  statements  made  that  we  were  undoubtedly 
empowered  to  take  such  action  and  that  it  was  demanded  of  us 
to  make  some  such  rule.  We  take  this  as  self-evident  there  will 
be  a  larger  number  of  citizens  here  that  will  be  interested  in  seeing 
these  rules  applied  and  it  will  be  partially  an  incentive  to  diligence 
on  the  part  of  those  who  control  elections  in  this  city  or  anywhere 
else  in  South  Dakota  not  to  refuse  to  adopt  and  put  in  force  these 
rules  and  regulations,  which  other  parts  of  Dakota  are  using  and 
which  are  intended  to  secure  a  fair  expression  of  the  will  of  the 
people.  If  anybody  disregards  these  rules  in  what  interest  will 
it  he,  why  willfully  do  it?  WTill  it  be  in  the  interest  of  purity  and 
true  suffrage  of  the  people?  No,  it  will  be  in  the  interest  of  cor- 
ruption, bribery,  false  election  and  false  return.  Mr.  President,  we 
have  said  that  great  interests  are  coming  up  for  decision.  I  wish 
to  see  that  every  delegate  here  and  every  intelligent  citizen  who 
has  pure  and  honest  intentions  to  care  for  the  will  of  the  people 
enough  to  be  in  sympathy  with  this  amendment  and  thereby  let- 
ting the  people  of  South  Dakota  know  that  the  great  mass  of  the 
people  demand  and  expect  something  of  this  kind.  There  has  not 
been  a  day  since  we  have  been  here  this  long  session  that  there  has 
not  come  up  to  us  letters  and  petitions  requesting  that  we  pass  some 
such  law  or  provision  as  this  governing  the  election  this  fall.  We 
know  what  the  interests  of  the  people  are ;  we  know  what  they  ex- 
pect and  we  are  here  to  put  ourselves  upon  record  upon  one  side 
or  the  other. 

Mr.  Clough:  There  has  been  a  great  deal  of  honest,  earnest, 
inquiring  talk  here  this  afternoon.  One  thing  I  think  has  been 
settled  and  that  is  this,  that  this  Constitution  has  vested  in  it  the 
authority,  let  me  go  back,  I  do  not  want  to  say  vested  authority. 
We  have  heard  a  great  deal  about  the  Omnibus  Bill  conferring 
authority  upon  us;  gentlemen  our  American  citizenship  confers 
upon  us  all  the  authority  and  perogatives  of  American  freemen. 
Our  Omnibus  Bill  takes  from  us  nearlv  all  of  them,  it  confers  noth- 


340  SOUTH  DAKOTA  DEBATES,  1889 

ing,  it  takes  from  us,  and  in  the  shading  process  it  takes, 
some;  it  leaves  few.  I  could  not  understand  from  any  talk  which 
we  have  heard  since  we  have  been  in  Convention  how  it  is  that  our 
powers  were  taken  forpn  us,  and  a  little  something  was  left  in  their 
stead ;  the  rest  was  conferred  upon  us.  I  think  this  is  the  difficulty, 
whether  or  no  we  have  the  power  to  regulate  the  elections  of  the 
officers  to  be  elected  this  fall.  It  is  certain  that  we  have  the  power 
to  protect  the  election  for  this  Constitution.  I  want  to  say  to  you 
gentlemen,  that  there  is  a  deep  and  earnest  solicitude  throughout 
the  entire  length  and  breadth  of  the  Territory  of  Dakota  that  the 
election  upon  the  Constitution  and  these  amendments  shall  be 
a  most  honest  and  fair  one.  I  have  canvassed  this  Territory  well 
from  east  to  west,  from  north  to  south.  Pardon  me  if  I  say  that 
there  is  no  solicitude  concerning  the  election  of  the  officers  that 
shall  be  the  nominees  of  the  party.  They  believe  that  the  parties 
in  this  Territory  are  able  to  handle  all  those  issues  either  under 
the  present  existing  rules  or  any  that  this  Constitutional  Convention 
may  adopt;  in  other  words  that  the  men  who  pass  the  crisis  of  the 
Convention  will  be  sure  of  their  election.  I  say  to  you  that  the 
better  men  and  the  better  women  of  the  Territory  are  mightly 
solicitious  for  amendments  to  the  Constitution ;  that  the  24th 
amendment  arouses  the  Farmers'  Alliance  solicitude ;  others  are 
solicitious  for  the  25th.  Now  if  we  can  protect  the  officers  who  are 
running  because  of  the  election  that  is  provided  for  in  this  Omnibus 
Bill  we  ought  to  do  so.  I  say,  gentlemen,  every  man  on  this  floor 
is  for  a  time  vested  with  the  responsibility  of  lawyers.  I  begin 
to  feel  with  all  my  reverence  for  lawyers  that  the  biggest  man  on 
this  floor  cannot  be  above  suspicion  of  legal  quibbling  over  this 
proposition.  Most  of  you  have  admitted  that  you  have  the  right 
to  do  this  thing  and  gentlemen,  what  we  have  the  right  to  do  this 
Territory  will  hold  us  responsible  for  doing ;  what  we  have  the  right 
to  do  if  we  do  not  do  that  we  shall  be  recreant  to  our  trust  in  the 
degree  that  we  sleep  upon  our  rights.  If  we  have  no  right  to  hedge 
and  limit  the  election  of  the  officer,  then  let  us  resubmit  this  sect:' on 
and  send  it  back  and  as  other  men  have  furnished  testimony  as  to 
the  characteristics  of  the  voters  of  certain  localities  of  our  State, 
I  am  constrained  to  say  this  that  during  the  few  years  that  I  have 
been  in  this  Territory  it  seems  to  me  that  I  have  come  in  contact 
with  the  most  magnificent  matured  manhood  that  I  ever  met. 


MR.  CLOUGH  341 


It  seems  to  me  that  I  never  met  so  high  an  aggregate  of  intelligence  an 
and  moral  attributes  as  characterizes  the  general  people  of  the  State. 
We  have  heard  the  moral  character  of  the  voters  of  Dakota  stigma- 
tized, heard  them  called  thugs  and  all  that  sort  of  things,  yet  I 
stand  here  and  plead  to  you,  if  there  is  a  cause  for  such  an  in- 
dictment to  rest  upon  the  voting  population  of  our  State, — my 
friends  I  stand  tonight  to  plead  with  you  to  protect  from  such 
hands  the  Constitution  that  we  are  to  submit.  The  amendments 
on  Prohibition,  the  amendment  on  Minority  Representation,  and 
the  rights  of  the  citizens  of  7,  I  believe,  of  Dakota's  cities  for  an 
honest  ballot  for  the  capital  location.  I  little  thought  that  I  would 
say  very  much  on  this  question  until  I  heard  from  the  gentleman 
from  Beadle ;  when  I  heard  him  criticise  and  stigmatize  the  voters 
of  Dakota  as  he  did,  I  appeal  in  the  name  of  God  for  something  to 
protect  us  against  them.  I  said  I  will  stand  on  this  floor  in  defense 
f  or  he  knows  Dakota  as  I  have  not  known  it ;  if  he  finds  such  indict- 
ments against  the  voters  of  Dakota.  I  have  not  found  it ;  he  as  a 
lawyer  and  politician  knows  various  people  as  I  do  not  know  them 
for  I  want  to  say  to  you  that  a  minister  only  sees  the  better  side 
of  people ;  a  man  never  shows  his  mean  side  to  the  preacher ;  he  is 
afraid  he  may  be  called  upon  to  bury  him  sometime  and  he  wants 
him  to  give  him  a  nice  kind  of  a  eulogy.  I  say  you  have  heard  h  m 
and  I  come  to  you  to  say  in  the  name  of  this  Constitution,  dear  to 
the  people  of  this  Territory,  dear  to  its  men  and  women,— I  come 
to  plead  that  you  hedge  it  about ;  set  guard  over  it  and  protect  it 
and  do  not  allow  the  men  that  he  tells  about  to  dominate  or  control 
the  election  upon  the  adoption  of  the  Constitution.  If  they 
,  must  have  that  privilege  with  the  officers.  If  we  have  got 
them  in  Dakota — I  do  not  believe  that  we  have  got  many  of 
them,  but  if  you  have  them  by  the  tens  of  thousands  judging 
from  what  I  have  heard  here  today,  if  you  have  got  them  I  do 
not  believe  many  of  this  body  yet  believe  this  always  must 
be.  Take  care  of  this  Constitution.  What  can  we  do  about 
it?  Let  us,  if  wt-  cannot  do  anything  else,  re-submit  it  with 
instructions  to  the  Schedule  Committee.'  .Apply  this  principal 
for  in  its  working  it  deserves  honorable  mention  and  require 
of  every  member  of  this  Convention  and  of  this  Territory  to  submit 
to  it  until  we  do  find  some  other  way.  I  appeal  to  you  if  there  is 
scarcely  a  man  who  loves  this  commonwealth  and  these  gentlemen 


342  SOUTH  DAKOTA  DEBATES,  1889 

love  it  as  just  that ;  if  there  is  scarcely  a  man  that  does  not  say,  give 
us  something  in  the  nature  of  a  reform  of  our  ballot  system.  Now, 
gentlemen,  in  the  name  of  the  Omnibus  Bill  one  thing  more  that 
is  perfectly  astonishing;  we  have  heard  of  technicalities;  one  Com- 
mittee to  which  I  belong  brought  in  a  report  in  direct  defiance  of 
the  Omnibus  Bill.  It  was  passed  without  a  dissenting  vote.  The 
Constitution  says  that  there  shall  be  three  times  as  many  repre- 
sentatives as  senators.  We  brought  in  45  senators  and  one  hundred 
and  twenty-four  representatives.  It  says  that  there  shall  be  in 
each  senatorial  district,  three  epresentatives,  but  you  have  not 
done  it.  In  some  there  is  six  or  seven  and  in  some  there  is  only 
two  — possibly  in  none  less  than  two — I  was  going  to  say  in  some 
there  was  only  one.  Now,  .gentlemen,  this  standing  on  techni- 
calities is  altogether  too  thin  a  thing  if  you  can  protect  my  friends 
that  are  running  for  the  Legislature,  isn't  it  reasonable  to  suppose 
we  can  protect  the  Constitution  in  the  proposition  as  true  as  we 
can  protect  the  interests  of  Sioux  Falls  and  these  other  places  for 
the  capital?  I  have  heard  several  say  within  the  last  week,  "Mr. 
Clough,  give  us  a  straight,  honest  ballot;  that  is  the  only  thing  to 
give  us  the  fair  show  with  all  these  other  conflicting  interests." 
Now,  gentlemen  of  this  Convention,  in  the  interest  of  all  these 
issues  and  good  government  give  us  these  safeguards  and  this  pro- 
tection to  the  ballot  box  secured  by  this  proposed  amendment. 

Mr.  Van  Buskirk:  I  came  into  this  Convention  as  I  have  said 
once  before  today,  thinking  that  we  could  adopt  this  or  some 
similar  amendment  with  the  report  of  the  Schedule  Committee. 
The  time  was  long  before  this  question  of  the  Australian  system  of 
voting  began  to  be  agitated  in  this  Territory  I  had  given  it  thought 
and  felt  interested  in  something  of  that  character  being  done.  The 
more  I  have  listened  to  the  arguments,  the  more  carefully  I  have 
canvassed  the  Omnibus  Bill,  the  more  I  have  become  convinced 
that  we  have  no  power  whatever  to  introduce  into  this  Constitu- 
tion the  provision  of  this  amendment.  There  has  been  what  pos- 
sibly might  be  termed  two  lines  of  argument  offered  here.  One 
is  upon  the  power  or  this  body  to  enact  this  amendment  and  the 
other  has  been  upon  the  policy  of  such  legislation.  Have  we  the 
power?  Now  it  is  idle  to  undertake  to  argue  for  a  moment  before 
a  logical  mind  that  we  have  the  power  because  as  one  gentleman 
stated  today,  that  we  shall  go  to  work  and  do  it  regardless  of  power. 


MR.   VAN    BUSK.IRK  343 


The  policy  of  these  arguments  much  of  it,  arises  out  of  this  condition 
of  things.  It  is  apparently  the  opinion  of  the  gentleman  who  ad- 
dressed this  Convention  we  have  a  standing  here  as  a  body  :n  the 
same  position  as  the  Legislature  convened  under  the  provisions  of 
the  Constitution  having  plenary  power  excepting  so  far  as  the 
power  is  limited  by  the  operation  of  the  Constitution  for  having 
no  inhibition  under  the  Constitution  which  the  people  of  this  Ter- 
ritory might  adopt  you  might  go  to  work  and  give  a  street  railroad 
or  gas  works  exclusive  rights  to  lay  their  tracks  or  their  mains  and 
light  the  cities  with  gas.  I  say  that  there  is  inhibition  and  in  the 
Constitution  the  Legislature  may  under  the  Constitution  have 
plenary  power  and  might  confer  just  such  privileges  upon  a  cor- 
poration. We  may  just  as  well  meet  this  question  fairly,  squarely 
as  to  dodge  it.  The  first  Legislature  under  the  organic  act  this 
being  a  territory,  has  no  legislative  powers  except  what  are  pro- 
vided, none  at  all.  Gentlemen,  a  few  years  ago  down  South  they 
disregarded  the  laws  of  this  country ;  they  got  together  and  legis- 
lated common  laws.  They  found  they  could  not  do  it.  They  have 
not  found  a  solitary  thing  that  the  Supreme  Court  said  bei  air.e 
law  and  binding.  The  Constitution  and  Laws  of  the  United  States 
control  all  of  us  throughout  this  broad  land  and  as  I  have  said  in 
the  Territory  it  is  the  law  of  the  land  until  such  time  as  Congress 
in  its  infinite  wisdom  otherwise  shall  say.  If  it  pass  a  law  author- 
izing us  to  organize  a  Territory  and  in  its  wisdom  in  the  Organic 
Act  of  the  Territory  confers  upon  us  the  powers  of  the  Legislature 
to  that  extent  which  they  may  say  this  Enabling  Act  does  very 
well.  I  say  the  powers  of  the  Legislature  of  the  Territories  is  pro- 
vided and  has  to  be  derived  from  the  terms  of  the  Organic  Ai  t 
precisely  as  the  powers  of  the  government  of  the  United  States 
is  limited  and  defined  by  the  Constitution  of  the  United  S 
You  will  readily  see  in  a  moment  that  we  have  no  plenary  power, 
nor  the  State  Legislature  would  not.  That  is  derivitive  and  when 
gentlemen  insist  here  that  we  may  reach  out  on  our  powers  that  is 
conferred  upon  us  by  act  of  Congress  for  the  purpose  of  legislation 
and  have  provided  for  an  election,  this  is  a  great  misconception 
of  the  theory  and  history  of  purposes  of  our  government.  There 
is  necessity  for  it  you  will  see  in  a  moment.  Now  then,  where  are 
we?  We  must  go  to  this  same  very  identical  Organic  Act,  bei  ause 
our  powers  arc  derivitive  and  we  must  find  our  powers  we  derive 


344  SOUTH  DAKOTA  DEBATES,  1889 

by  that  act.  We  must  look  to  this  Omnibus  Bill  and  its  terms 
and  provisions  for  the  puspose  of  ascertaining  what  power  we 
derive  to  transact  business  here  in  this  Convention.  Strictly  and 
legally  since  we  could  not  without  we  derived  the  power  from  the 
act  of  Congress  conferring  it  upon  us.  Now,  if  the  only  question 
perceived  in  this  is  that  of  authority  of  the  Convention  by  virtue 
of  the  act  of  Congress  then  they  have  the  right  to  confer  upon  us 
just  such  limitations  as  they  please  and  we  are  bound  by  them. 
Gentlemen,  the  intent  generally  is  to  a  logical  idea  of  what  might  be 
said  in  the  argument  by  some  other  gentleman  on  the  floor,  to  tear 
that  down  and  therefore  to  disprove  the  assertion  which  they  may 
make.  I  may  attack  argument  which  counsel  in  court  might  make 
and  demonstrate  the  falsity  of  that.  It  does  not  demonstrate  the 
correctness  of  the  position  I  occupy  before  the  court  or  public.  It 
is  clear  that  the  whole  line  of  argument  here,  and  while  I  desire  to 
accept  the  other  theory,  I  cannot  stand  here  with  my  knowledge 
which  has  been  the  accumulation  of  most  a  life-time  and  which  is 
largely  derived  from  forming  legal  "deductions  from  evidence  for  a 
measure  which  I  know  cannot  be  sustained  at  all.  Congress  used 
that  language  understand ingly,  they  used  it  in  this  light. that  it 
fell  however  within  the  authority  of  the  Legislature  to  provide  the 
amendment  to  be  submitted  to  the  vote  of  the  people.  Now,  when 
they  do  that  they  go  to  work  by  requisition  of  the  act  and  provide 
the  formal  ballot  which  shall  be  voted  whether  the  people  were  to 
accept  the  amendment  to  the  Constitution  or  not.  Congress  says 
we  may  fix  the  regulation  in  relation  to  it.  We  go  to  work  and  say 
a  man  might  vote  one  way  and  then  fix  the  form  of  his  ballot  and 
say  if  he  votes  the  other  way  that  is  the  form  of  his  ballot  and  that 
he  cannot  cast  it  only  one  way  and  when  Congress  used  that  form 
with  reference  to  the  adoption  of  this  Constitution,  Congress  meant 
by  that  simply  this,  that  we  might  do  as  has  been  done  by  legis- 
lative bodies  in  other  instances ;  so  that  when  a  man  went  to  vote 
it  should  be  intelligently  voted  and  as  the  voter  intended  it  to  do. 
Otherwise  there  are  gentlemen  who  might  put  in  a  vote  for  another 
man, — a  different  person  than  he  intended  to.  With  a  different 
form  of  vote  he  actually  would  not  be  able  to  determine  what  those 
votes  were.  Now,  if  they  had  designed  that  we,  here  in  this  body, 
might  provide  regulations  for  that  election,  they  would  not  have 
said  we  could  provide  regulations  in  reference  to  the  Constitution, 


EDGERTOX  AND  CLOUGH  DEBATE  345 

but  they  would  have  said  more  had  they  intended  more.  They 
would  have  said  that  we  might  provide  rules  and  regulations  gov- 
erning the  election  for  the  Constitution  and  State  officers.  They 
would  not  have  stopped  short  of  it.  They  would  have  said,  you 
may  vote  upon  this  Constitution,  you  may  at  that  time  elect  State 
officers  and  you  may  provide  the  necessary  rules  and  regulations 
for  that  purpose, — for  the  purpose  of  controlling  that  election;  why 
did  they  stop  and  say  that  we  might  provide  regulations  upon  the 
question  of  the  adoption  of  the  Constitution ;  why  did  not  they  go 
further  if  they  meant  more.  That  is  the  difficulty  in  this  whole 
thing.  I  wish  it  was  otherwise,  and  if  the  time  ever  comes  when  I 
can  go  to  the  polls  and  help  elect  a  man  that  will  go  to  the  Legis- 
lature and  provide  a  measure  giving  us  just  the  system  desired  in 
this  amendment  and  which  I  have  desired  for  years  before  it  was 
adopted  in  this  Territory,  I  will  support  that- man  gladly  and  if  L 
can  aid  in  preparing  such  a  bill  and  carrying  it  through  he  can  have 
my  services. 

Mr.  Edgerton  (of  Davison):  I  understood  that  first  gentleman 
from  Codington  to  say  this ;  that  the  Constitution  provides  that  we 
should  have  three  times  the  number  of  members  that  we  have 
Senators  and  that  every  senatorial  district  should  have  three  mem- 
bers and  that  we  had  violated  the  provision  of  the  Enabling  Act. 
I  would  like  the  first  gentleman  from  Codington  to  call  my  attention 
to  the  section  he  has  violated. 

Mr.  Clough:  I  have  read  that  several  times.  Three  times 
forty-five  isn't  it? 

Mr.  Edgerton:  I  belong  to  that  hateful  class — lawyers;  but 
they  are  trained  to  speak  in  business  like  this  with  some  degree  of 
accuracy.  "The  number  of  members  of  the  House  of  Representa- 
tives shall  not  be'less  than  seventy-five  nor  more  than  one  hundred 
and  thirty-five.  The  number  of  members  .of  the  Senate  shall  not 
be  less  than  twenty-five  nor  more  than  forty-five."  "The  sessions 
of  this  Legislature  shall  be  bi-ennial  except  as  otherwise  provided 
in  this  Constitution." 

Mr.  Clough:     There  is  another  paragraph  there. 

Mr.  Edgreton:  That  provides  for  that  minority  representa- 
tion. I  apprehend  that  the  intelligence  of  the  people  next  fall  will 
say  that  it  will  never  be  a  part  of  the  Constitution. 

Mr.  Willis:      Mr.  President,— 


346  SOUTH  DAKOTA  DEBATES,   1889 

The  Chairman:     The  gentleman  from  Davison  has  the  flcor. 

Mr.  Willis:  I  rise  to  a  point  of  order.  Have  not  we  a  rule?  I 
am  sure  we  have  against  a  showing  of  approval  or  disapproval  upon 
this  floor. 

The  Chairman:     I  guess  there  is  something  like  that. 

Mr.  Edgerton:  I  felt  a  little  sensitive  as  a  member  of  this 
Convention  when  it  was  charged  that  we  had  plainly  violated  this 
Constitution  that  we  have  met  here  to  frame, — or  perfect  rather. 
I  knew  it  was  my  intention  as  declared  on  the  first  day  of  this  Con- 
vention that  we  should  not  go  beyond  the  Organic  Act 'that  limited 
the  powers  of  this  Convention.  When  it  was  declared  here  that 
we  had  plainly  violated  it  I  felt  as  if  I  would  like  to  have  the  at- 
tention called  to  the  section  that  we  had  violated.  I  admit  this. 
The  plain  intention  of  the  Constitution  is  that  the  number  of  mem- 
bers shall  be  three  times  the  number  of  Senators;  but  I  had  yet  to 
learn  the  fact  there  was  any  provision  in  the  Constitution  that 
there  are  senatorial  districts  that  shall  contain  three  members. 
There  is  no  such  provision  that  my  attention  has  ever  been  called 
to;  there  is  a  provision  that  if  the  people  of  this  State  next  fall 
adopt  the  Minority  Representation  and  it  becomes  a  part  of  the 
Constitution  then  thereafter  there  are  districts  that  must  be  so 
formed.  But  I  have  no  fear  that  that  Minority  Representation 
would  be  adopted.  It  at  least,  forms  no  part  of  the  Constitution 
today. 

Mr.  Clough:  My  attention  was  called  to  that  several  times. 
I  thought  I  was  right,  correct;  and  I  think  I  tm. 

Mr.  Huntley:  As  I  listened  to  the  learned  Judge  who  spoke 
so  feelingly  upon  this  subject,  interpreting  the  meaning  of  Congress, 
I  thought  he  should  have  come  from  school  of  prophets  instead  of 
the  legal  profession.  I  do  not  understand  how  he  may  stand  on 
this  floor  and  interpret  to  us  the  meaning  of  Congress  of  the  language 
which  every  one  has  perused  the  same  as  he  has  himself,  unless  it 
is  through  some  authority  like  that  of  the  prophets  to  which  I  be- 
lieve he  makes  no  claims.  • 

I  did  not  at  first  read  those  words  of  Congress  in  this  Bill. 
It  seems  just  as  plain  to  me," very  differently  from  what,  from  his 
interpretation  of  it,  it  seems  to  him.  It  looks  to  me  clearly  that  we 
have  the  power  to  make  regulations  and  rules,  to  pass  ordinances, 
and  what  does  ordinances  mean  but  law,  enactments,  decrees, — 


IlrxTLEY  vs.  EDGERTON  347 

and  if  we  come  here  together  under  the  express  authority  of  Con- 
gress to  make  decrees,  what  is  that  but  that  we  have  the  power  to 
make  regulations  to  carry  out  all  those  acts  of  which  we  approve 
and  which  we  here  decree,  and  if  we  are  empowered  to  make  rules 
and  regulations  for  the  vote  on  the  Constitution  and  its  separate 
articles  and  if  that  same  bill  provides  that  this  Convention  may,  it 
does  not  say  that  it  shall  but  that  it  may,  provide  by  ordinance  for 
the  election  of  State  officers ;  what  does  it  mean  but  that  we  may 
provide  by  regulations  and  rules  how  these  said  officers  shall  be 
elected.  It  is  a  mystery  to  me  how  these  legal  gentlemen  differ 
from  one  another.  We  do  not  intend  ,  and  do  not  cast  any 
reflection  upon  them.  I  believe  the  best  talent  among  them  have 
taken  sides  with  those  who  think  we  have  the  full  authority ;  there- 
fore we  preachers  are  not  assuming  anything  when  we  boast  of  the 
legal  talent  on  the  floor.  We  think  that  we  intend  to  urge  and  do 
urge  upon  this  body  that  they  put  this  ordinance  in  that  Schedule. 
\\Y  have  the  power  and  I  do  not  see  how  any  question  can  arise  upon 
it.  Why,  Sirs,  the  Committee  in  the  Schedule  have  done  it;  they 
presume  to  do  that  very  thing.  They  have  the  power  to  present  it 
and  recommend  to  us  and  they  do  it  and  recommend  it.  They 
present  and  recommend  that  we  take  the  laws  of  the  Territory  and 
apply  them  to  the  election  of  State  officers.  Is  there  anything  in 
the  Omnibus  Bill  that  directs  that  just  those  shall  be  slighted  in  MK  h 
rules  and  regulations:'  Where  do  they  find  that?  Will  the  gentle- 
man please  read  the  section  in  which  it  was  found.  They  insist 
upon  that  being  in  there  according  to  authority;  very  well.  Hav- 
ing that  authority  they  have  the  same  authority  for  incorporating 
the  same  amendment  which  we  bring;  the  same  precisely.  If  they 
have  the  same  authority  for  one  they  have  the  authority  for  the 
other  and  we  insist  that  this  is,  as  presented,  is  the  belief  of  this 
body  and  is  their  will  in  regard  to  this  matter.  Those  who  are 
favoring  this  were  taken  rather  aback  this  afternoon  by  the  fears 
instilled  by  the  legal  friends  who  first  opened  this  discussion.  I 
think  surely  he  ought  to  have  come  from  the  school  of  prophets,  pro- 
nounced the  cause  which  we  have  here  insisted  upon  as  a  great 
crime,  we  propose  to  deprive  somebody  of  his  right  to  vote,  to  rejert 
him  if  he  goes  to  vote  that  ballot  and  don't  in  the  f.>nn  we  preseribi- : 
take  away  from  him  the  dearest  right  of  the  American  citizen.  I 


348  SOUTH  DAKOTA  DEBATES,   1889 

could  not  but  admire  the  facility  with  which  he  pictured  his  fancies 
and  imaginings. 

In  this  amendment  this  Convention  desires  to  protect  and 
secure  to  the  voter  his  rights,  and  the  passing  of  such  an  ordinance 
would  most  effectually  compass  that  end.  What  would  be  the 
effect  if  a  man  steps  up  and  presents  his  ballot  and  refuses  to  vote  in 
accordance  with  the  rules  prescribed?  I  will  tell  you  what  I  wrould 
say:  "Mr.  Voter,  if  you  don't  want  to  vote  in  accordance  with  the 
regulations,  you  dor\'t  have  to.  There  is  no  law  compelling  a  man 
to  vote."  What  would  you  do  with  a  wild  man  who  refuses  to 
carry  out  this  ordinance?  You  would  tell  him,  "You  don't  have 
to  vote".  Any  dunce  that  would  refuse  to  carry  out  any  ordinance 
that  was  here  prescribed.  Suppose  Sioux  Falls  should  have  two 
Senators,  six  or  seven  Representatives,  and  suppose,  at  the  election 
this  fall,  they  elect  five  Senators  and  fifteen  or  twenty  Representa- 
tives, what  would  you  do  about  it  ?  Well ,  Sir,  I  presume  they  would 
find  some  way  to  legally  do  it.  Whatever  way  that  is,  this  is  the 
way  I  should  put  it.  If  Sioux  Falls  did  not  comply  with  the  ordi- 
nance we  had  in  regard  to  elections  they  could  pronounce  our  action 
in  the  one  case  illegal  and  void  and  it  might  be  pronounced  void  if 
they  violated  this  ordinance  if  we  pass  it.  I  believe  we  have  the 
authority  to  pass  it;  I  cannot  see  it  otherwise. 

I  notice  this  peculiar  fact:  Nearly  every  speaker  who  has 
opposed  this  measure,  nearly  every  one  of  them  has  said  it  was 
desirable  that  we  have  such  protection  thrown  around  the  ballot 
box;  every  one  wanted  it.  Our  Legislature  wanted  it  last  winter 
and  they  passed  a  resolution  like  it ;  it  came  into  the  hands  of  the 
Clerk  and  everybody  wanted  it ;  somebody  wanted  it  so  badly  they 
got  it  away  from  the  Clerk  and  it  never  got  around  anywhere  else. 
Well,  my  friends,  we  want  this  just  the  same  as  if  it  had  been  seen 
and  shall  we,  because  some  of  these  lawyers,  who  is  less  discreet 
and  less  talented,  oppose  some  of  those  ?  Other  lawyers,  who  under- 
stand the  case  better  and  are  intent  on  doing  the  right  thing  shall 
those  of  us  who  are  not  lawyers  sit  in  with  the  opposers  of  this 
measure,  or  shall  we  take  part  with  those  who  want  the  ballot  pro- 
tected? I  tell  you  let  us  pass  this  ordinance  and  if  Sioux  Falls,  or 
Huron  or  any  other  town,  whether  they  want  the  capital  or  not,  do 
not  obey  that  ordinance  I  tell  you  there  will  be  a  way  provided 


MINORITY  REPRESENTATION  349 

whereby  they  will  suffer  and  they  will  wish  they  had  obeyed  the 
ordinance. 

My  friends,  my  memory  goes  back  to  a.  point  four  years  ago 
when  the  Territory  of  Dakota  elected  a  legal  Constitutional  Con- 
vention. That  county  that  the  honored  President  now  represents, 
said  it  would  not  amount  to  anything ;  they  did  not  need  any  dele- 
gate. They  were  not  represented  here.  Well,  they  could  not  be 
compelled  to  be  so  what  happened?  They  did  not  come  here ;  they 
stayed  at  home  and  had  no  part  in  it ;  they  never  had  a  vote  in  pass- 
ing this  ordinance.  That  is  what  happened  to  them  if  they  do  not 
care  enough  for  this  part  of  the  Schedule  and  Ordinance  that  we 
pass,  should  we  adopt  the  amendment,  loyally  stand  by  its  pro- 
visions, then  they  will  be  left  out  of  the  election,  that  is  all.  Let 
us  do  our  duty,  for  it  is  right,  and  God  is  for  the  right.  Let  us  not 
be  ashamed. 

I  tell  you  that  these  lawyers  that  have  been  so  full  of  fire 
against  this  measure  will  see  to  it  that  their  votes  are  not  lost  when 
they  have  to.  Some  gentleman  in  the  lobby,  after  the  afternoon 
session,  gentlemen  of  this  town,  men  of  ability,  of  reputation  as 
lawyers ;  men  interested  here  in  the  work  and  especially  interested 
in  their  solicitude  on  the  capital  question,  said  to  me  they  were  both 
in  favor  of  this  measure,  very  much  in  favor  of  it.  One  of  them 
was  so  much  in  favor  of  it  he  told  me  he  was  really  a  crank  on  this 
subject.  Indeed  there  are  here  cranks  here  that  turn  the  wrong 
way ;  some  left  handed  cranks.  These  left-handed  cranks  that  are 
now  endeavoring  to  turn  the  machine  backwards.  We  want  to 
go  ahead,  no  matter  whether  we  are  cranks  or  not,  gentlemen.  Let 
us  do  our  duty  faithfully  and  the  end  will  justify  us. 

Mr.  Cooper:  I  do  not  think  there  are  many  gentlemen  on  this 
floor  this  evening  but  would,  if  asked  the  question,  declare  he  was 
in  favor  of  a  law  of  this  kind  if  we  have  the  power  to  enact  it,  and 
for  the  reason  the  public  interests  demand  it,  because  of  the  nature 
of  things  in  this  Territory  and  in  every  State  and  Territory  in  this 
Union.  We  have  been  led  to  believe  that  there  were  dishonest 
men;  that  there  are  corrupt  men;  that  there  were  men  who  would 
disregard  the  election  laws  of  the  coming  State,  and  disregard  the 
election  laws  of  every  State  and  Territory  in  the  Union;  that  they 
were  dishonest;  that  thev  were  corruptionists;  that  they  were 
sluggers  and  certainly  that  thev  were  thugs.  That  was  the  reason 


350  SOUTH  DAKOTA  DEBATES,  1889 

why  I  think  every  gentleman  and  every  individual  who  has  spoken 
upon  this  question  has  declared  that  if  he  had  the  right  to  enact  this 
law  and  regulation  of  that  kind  that  it  would  be  wise,  and  just  and 
politic  thing  to  do.  I  believe  that  every  gentleman  upon  this  floor 
is  in  favor  of  protection  of  the  ballot;  is  in  favor  of  a  true,  pure, 
honest  ballot  and  fair  count.  But  we  have  acquiredthe  information 
from  the  learned  gentleman  from  Codington  County,  that  none  of 
the  reasons  which  have  been  urged  in  opposition  to  the  reputation 
of  this  kind,  so  we  have  learned  from  the  learned  gentleman  but 
that  were  an  insult  upon  the  manhood  and  womanhood  of  this 
commonwealth ;  that  there  is  nowhere  in  all  this  bright  land  of  ours 
anything  which  savors  of  purity,  anything  that  savors  of  honesty, 
and  in  the  meanest  language  that  he  could  employ.  He  not  only 
assaulted  and  impugned  the  motives  of  every  gentleman  who  spoke 
against  this  amendment,  but  even  undertook  to  make  an  assault 
upon  me.  I  say  that  if  the  position  that  he  has  taken  is  true,  that 
nothing  of  the  nature  of  purity  and  honesty  exists  among  the  people 
of  this  great  State.  He  has  proved  beyond  recall,  beyond  possibility 
to  his  own  satisfaction  I  presume,  certainly  to  the  satisfaction  of 
every  gentleman  upon  this  floor,  that  this  amendment  is  an  insult 
upon  the  manhood  and  womanhood  of  South  Dakota.  I  say  that  if 
any  gentleman  believes  that  the  position  that  he  has  taken  is  the 
only  correct  position  for  that  gentleman  upon  this  floor  to  take. 
But  I  believe  that  in  the  people  of  South  Dakota  and  no  gentleman 
believes  more  firmly  than  I  do  that  nowhere  upon  God's  green  earth 
are  the  people  more  honest,  conscientious,  more  pure  in  his  manhood ; 
and  no  people  higher  in  this  integrity  than  these  are.  I  say  I  be- 
lieve there  are  dishonest  men  in  this  State ;  I  say  I  believe  there  are 
corrupt  men  in  this  State ;  that  there  is  what  is  known  as  thugs  in 
this  State  I  believe  that  this  is  the  reason  why,  Mr.  President,  and 
gentlemen  of  this  Convention, that  an  ordinance  of  this  kind,  a  regu- 
lation of  this  kind,  a  law  of  this  kind,  should  be  passed,  but  there 
is  a  question  back  of  it.  First,  have  we  the  right  to  pass  it?  I  do 
not  always  believe  in  the  sentiment  expressed  by  one  gentleman 
upon  this  floor;  I  do  not  think  he  will  when  he  stops  to  analyze 
it ;  I  do  not  believe  the  end  always  justifies  the  means  ;  I  do  not 
believe  that  beyond  question  one  wrong  thing  in  order  to  prevent 
another  wrong  thing  from  being  done,  can  always  be  employed  so 
the  end  justifies  the  means. 


MR.  COOPER'S  VIEWS  351 


\ow,  as  to  the  matter  of  disagreement  between  the  lawyers 
among  the  members  of  this  body,  I  say  there  is  not  a  lawyer  who 
has  spoken  upon  this  subject  this  afternoon  or  evening  that  has 
denied  a  single  gentleman  who  has  spoken  upon  it.  I  say  there  is 
no  difference  of  opinion  between  the  legal  gentlemen  who  have 
spoken  upon  this  proposition ;  they  all  agree  that  no  judge  of  election 
would  have  the  right  to  refuse  a  ballot  provided  by  the  laws  of  the 
Territory  of  Dakota,  a  ballot  which  would  be  legal  under  the  laws 
of  the  Territory  of  Dakota.  No  judge  of  e  ection  would  have  the 
right  to  refuse;  if  he  did,  by  the  laws  of  this  Territory,  he  is  guilty 
of  a  crime.  No  gentleman  who  has  spoken  upon  this  question 
today  has  admitted  or  claimed  that  in  his  opinion  a  ballot  which 
would  be  legal  under  the  laws  of  this  Territory  but  which  would 
not  comply  with  the  laws  of  this  amendment,  would  be  an  illegal 
ballot ;  would  invalidate  the  election. 

But  they  say,  the  gentlemen  upon  the  other  side,  that  we  are 
in  a  condition  of  anarchy  without  the  laws  of  this  Territory.  They 
need  the  law  to  protect  them,  because  they  say  you  cannot  repeal  the 
laws  or  banish  the  laws.  The  moment  you  do  that  you  make  it 
an  illegal  vote.  I  say  that  I  do  not  believe  that  I  can  conscientiously 
vote  for  a  thing  of  that  kind.  I  believe  in  the  law.  That  under 
the  laws  that  a  man  that  casts  an  illegal  vote  is  guilty  of  a  crime, 
and  a  judge  of  election  who  refuses  to  accept  a  legal  ballot  is  guilty 
of  a  crime.  A  gentleman  here  today  argues  this  question  saying. 
"No  judge  or  no  jury".  I  cannot  quote  his  language — "I  do  not 
believe  any  judge  of  election  could  be  convicted  for  refusing  to 
accept  the  ballot."  I  would  not  say  that  is  correctly  quoted,  but 
I  believe  that  is  the  substance  of  it.  I  have  more  faith  in  the  hon- 
esty of  the  judges  and  juries  of  this  great  Territory  than  to  say  that 
they  will  deliberately  break  the  laws  of  this  coming  State.  I  be- 
lieve that  if  the  law  made  a  certain  man  guilty  of  a  crime  and  the 
man  that  performed  that  act  was  placed  on  trial  and  it  was  plainly 
proven  that  he  violated  the  laws  of  this  Territory  I  believe  that 
the  honest  manhood  of  Dakota  would  say  that  he  should  be  pun- 
ished. I  say  I  do  not  believe  because  we  are  passing  from  Ter- 
ritorial condition  to  statehood, — I  do  not  believe  that  we  are  in  a 
condition  of  anarchy;  I  do  not  believe  that  we  are  absolutely  with- 
out protection  because  the  Enabling  Act  provides  the  laws  now  in 
existence  shall  stand  and  that  they  shall  have  full  force  and  effect 


352  SOUTH  DAKOTA  DEBATES,  1889 

until  superceded  by  future  amendments  by  the  Legislature.  I 
would  vote  for  an  amendment  of  this  kind  if  I  thought  we  had  the 
right  to  do  it ;  for  that  reason  I  shall  cast  my  vote  in  the  negative. 
I  will  say  again  I  do  not  believe  that  all  men  in  this  Territory  are 
so  pure  and  undefiled  and  have  kept  themselves  so  unspotted  from 
the  world  that  they  do  not  need  any  laws.  I  do  not  believe  that. 

Mr.  Clough:  I  rise  to  a  question  of  privilege.  There  is  no 
man  that  would  rather  be  laughed  at  than  I  would  if  I  make  a  mis- 
take I  am  willing  to  acknowledge  it.  My  eyes  are  not  very  sharp. 
I  have  looked  at  this  Constitution,  have  read  it  a  score  of  times  and 
have  talked  about  this  rule  seriously.  I  acknowledge  that  I  never 
discovered  that  it  was  for  the  adoption  of  the  Minority  Report. 
I  presume  twenty  have  discussed.  I  acknowledge  my  mistake  and 
I  am  glad  to  be  enlightened.  I  confess  that  I  made  a  mis-statement, 
when  upon  the  floor  before  and  sincerely  beg  the  pardon  of  the 
President  of  this  Convention. 

The  Chairman:  The  Chair  recommends  to  this  Convention 
to  endorse  the  sentiments  that  "honest  confession  is  good  for  the 
soul."  (Laughter.) 

Mr.  Dickinson:  I  want,  upon  the  heel  of  the  remark  of  the 
gentleman  from  Codington  I  like  to  get  square  arguments,  I  want, 
wrhile  he  is  upon  the  subject  of  Territorial  law  to  call  his  attention  to 
this  article  which  we  are  considering,  Article  7  of  the  Schedule 
submitted  here.  The  section  reads  as  follows:  Section  7.  The 
election  provided  for  herein  shall  be  under  the  provisions  of  the 
Constitution  herewith  submitted,  and  shall  be  conducted,  in  all 
respects,  as  elections  are  conducted  under  the  general  laws  of  the 
Territory  of  Dakota,  except  as  herein  provided.  No  mere  tech- 
nicalities or  informalities,  in  the  manner  or  form  or  election,  or 
neglect  of  any  officer  to  perform  his  duty  with  regard  thereto, 
shall  be  deemed  to  vitiate  or  void  the  same,  it  being  the  true  intent 
and  object  of  this  ordinance  to  ascertain  and  give  effect  to  the  true 
will  of  the  people  of  the  State  of  South  Dakota,  as  expressed  by 
their  votes  at  the  polls.  I  want  to  ask  that  the  gentleman  think 
upon  that  exception  and  the  meaning  of  it.  The  Schedule  Com- 
mittee voted  down  this  amendment  in  their  meeting,  they  have 
taken  occasion  to  say.  I  grant  they  might  call  attention  to  it 
simply  to  remove  any  doubts  about  why  that  being  so,  we  have  no 
right  to  anything  except  as  herein  provided.  These  articles  will 


PREACHERS  AND  LAWYERS  353 

be  submitted  but  the  same  will  be  because  the  Territorial  laws 
shall  prevail  in  this  election.  We  make  the  same  provision  ex- 
actly. I  know  there  are  minor  exceptions  here,  they  are  small  I 
grant,  but  that  right  which  they  hold  to  do  here  with  small  provisions 
paves  the  way  for  larger  changes  which  are  clear  violations  of  the 
spirit  of  the  Enabling  Act. 

Mr.  Stroupe:  I  would  like  to  speak  to  a  question  of  privilege 
also,  because  I  do  not  intend  to  speak  very  much  of  the  report 
inasmuch  as  the  Chair  has  allowed  so  many  gentlemen  to  speak 
upon  the  question  so  often,  I  will  speak  for  a  moment. 

This  seems  to  have  been  a  field  day  between  the  preachers 
and  lawyers.  I  confess,  although  I  am  not  one  of  the  lawyers,  the 
lawyers  have  the  best  of  it.  I  came  here  in  doubt  this  afternoon ;  I 
I  thought  that  the  lawyers  could  make  it  clear  to  my  mind  as  one  of 
the  fifty  jurymen  that  we  had  a  perfect  right  to  ingraft  this  amend- 
ment into  the  Schedule,  that  I  should  vote  for  it  because  my  friend 
from  Codington  says  I  am  in  favor  and  in  sympathy  with  the  spirit 
of  this  amendment.  I  want  to  say  that  I  am  ready  to  place  myself 
upon  record  that  I  am  in  favor  of  Prohibition.  No  man  worked  in 
'85  harder  than  I  did  for  it  one  year  ago  last  fall  for  local  option. 
I  do  not  except  any  man.  I  do  not  expect  any  man  will  work 
any  harder  for  it  till  next  first  day  of  October  than  Ir  be  he 
preacher  or  sinner.  I  say  that  if  there  is  a  person  here  who  will 
make  an  argument,  not  an  enthusiastic  talk,  that  is  not  very 
much  of  a  legal  argument,  let  us  hear  him.  .  There  are  those 
who  can  talk  in  public  of  course,  we  can't  blame  them  for  it; 
they  have  been  trained  to  it;  they  have  been  trained  to  preach, 
talk  fire  in  their  pulpits  where  no  man  dare,  if  he  had  a  chance, 
to  say  anything  against  it.  I  want  to  begin  with  the  first  gen- 
tleman that  spoke  here  to-night  and  say  briefly,  while  his  speech 
will  do  very  well  as  a  plea  for  prohibition  it  would  not  satisfy  me 
very  well  as  an  argument  on  this  proposition;  the  next  gentle- 
man from  Day  I  admire.  I  want  him  to  come  into  our  county 
before  October;  I  want  him  to  come  into  our  town  and  talk 
prohibition.  Also  the  minister  from  Codington,  I  would  like 
to  have  him  come  in  there,  but  before  he  comes  I  would  want  him 
to  get  his  speech  committed  in  pretty  good  order  so  he  won't  make 
any  bad  breaks.  I  think  Day  and  Beadle  counties  have  to  take  it 
right  and  left;  I  think  it  is  unjust.  Mr.  Cooper,  I  think,  made  one 


354  SOUTH  DAKOTA  DEBATES,  1889 

of  the  best  arguments  that  was  made  upon  the  floor  this  after- 
noon and  of  anyone  tonight.  I  know  I  do  not  intend  for  one 
minute  to  be  discourteous  to  anyone  or  reflect  upon  the  motives 
of  anyone  as  one  or  two  speakers  have  passed,  which  he  chooses 
to  say  reflect  on. 

I  am  certain  that  these  gentlemen  upon  reflection  will  take  it 
all  back  and  might  publish  it  even.  This  is  a  question  of  privilege. 
Gentlemen,  I  will  stay  here  until  morning  if  you  want  to  talk ;  but 
my  dear  preachers  if  you  do  talk  upon  this  question  whether  this 
amendment  will  be  legal,  whether  we  have  the  right  to  pass  it  and 
'  not  that  we  would  like  to  have  it  there.  I  don't  believe  that  there 
is  a  man  here  but  what  would  like  to  see  it  a  law,  but  if  the  lawyers 
say  that  it  cannot  be  legally  passed,  then  let  us  do  the  next  best 
thing;  be  on  the  safe  side  and  vote  according  to  the  Territorial 
laws.  This  is  my  plea. 

Mr.  Willis:     I  am  a  lawyer, — 

The  Chairman:     How  do  you  spell  that  word?       (Laughter). 

Mr.  Willis:  I  have  had  a  course  of  law  since  I  have  been 
here.  I  might  beg  to  insinuate  a  suggestion  now  that  the  last 
speaker  did  not  stick  to  his  text.  I  rise  to  defend  nobody  and  observe 
to  remark  anything  about  anybody.  I  am  going  to  studiously 
aviod  any  personal  suggestions.  I  mean  to  say  nothing  contra  y 
if  I  thought  of  it.  I  have  done  talking  mere  cold  mysteries;  it 
would  confuse  this  Convention  while  confusion  is  now  confounded. 
It  now  appears  to  me  to  begin  to  seem  that  certain  lawyers  of  this 
body  of  long  experience  are  very  clear  or  rather  quite  clear  or  con- 
siderable clear, — that  is  about  this  question  of  power  we  have  not 
got.  But  there  are  certain  other  lawyers  of  experience  so  far  as 
I  know  I  have  only  to  make  up  my  mind  from  observation  I  have 
had  no  experience  with  this,  who,  upon  this  question  of  power, 
decides  that  we  have  the  power. 

Two  hours  ago  a  man  whom  I  judge  to  be  one  of  the  prominent 
lawyers  of  this  city  who  is  now  in  the  lobby,  in  relation  to,  this  mat- 
ter made  this  remark  that  is  about  the  question  of  this  Convention 
having  the  authority  under  the  Omnibus  Bill  to  prescribe  the  con- 
ditions of  the  ballot  next  October,  even  to  the  extent  of  the  adoption 
of  this  amendment.  He  had  not  the  shadow  of  a  doubt ;  his  mind 
was  as  clear  as  a  bell  which  is  entirely  clear;  his  manner  was  just 
as  confident  as  it  could  be ;  he  was  just  clear  on  that  point.  Many 


STERLING  COMES  BACK  355 

lawyers  disagree  as  to  that  subject,  whether  we  have  the  power, 
this  is  the  only  question  that  is  pertinent  to  be  discussed.  There 
are  many  men  besides  preachers  who  have  given  evidence  of  re- 
dundancy as  it  is  true  some  preachers  have.  I  am  not  a  preacher; 
I  am  a  lawyer.  Well,  I  guess  the  citizens  of  the  State  to  be,  will 
weigh  you  fairly  that  we  may,  that  this  body  may  procrastinate 
as  they  will.  Let  me  say  that  the  people  of  South  Dakota  know 
their  own  minds  and  will  weigh  us  by  our  actions  upon  this  amend- 
ment. Why,  it  is  very  clear  to  me  that  there  is  a  difference  of 
opinion  and  that  nobody  knows  exactly  just  what  we  ought  to 
do.  But  with  the  popular  pressure  upon  this  point.,  which  we  know 
to  be  behind  us,  which  some  of  us  appear  to  be  conscious  of  I  am 
constrained  to  say  that  with  this  difference  of  opinion  I  am  thorough- 
ly dissatisfied.  I  think  I  was  never  more  dissatisfied  in  my  life. 
I  am  thoroughly  dissatisfied  and  I  am  in  favor  of  supporting  the 
amendment.  I  am  in  favor  of  the  amendment  and  I  want  the  men 
of  this  body  to  know  I  shall  vote  for  this  amendment.  I  be  ieve 
the  majority  ought  to  vote  for  the  amendment. 

Mr.  Sterling:  In  the  argument  of  this  question  I  have  had 
no  thought  whatever  as  far  as  my  duty  is  concerned  about  the 
pressure  that  may  be  brought  to  bear  from  the  outside.  I  consider 
that  in  questions  of  this  kind  that  what  people  should  think  is  the 
last  thing  that  should  influence,  a  lawyer.  I  think  I  feel  everything 
that  recommends  the  desirability  of  such  an  amendment  as  this, 
perhaps  as  keenly  as  anybody ,  but  I  do  not  believe  that  it  influences 
my  judgment  nor  vote  upon  the  question  of  power.  Now,  one  of 
the  arguments  that  has  been  adduced  here  as  to  the  question  of 
power  has  been  satisfactory  to  my  mind  and  I  state  now  that  in 
the  discussion  of  this  one  question  I  have  failed  to  hear  anything 
that  has  been  conclusive  in  my  mind  to  even  raise  a  doubt  as  to 
what  I  stated  in  my  remarks  this  afternoon.  I  recognize  this, 
that  there  are  certain  essential  things  about  every  election  that 
no  rules  nor  regulations  can  influence  or*  set  aside.  The  sul>j ••(  t 
of  the  election,  the  time  of  the  election,  the  place  of  the  election,  are 
all  essential ;  and  as  they  are  fixed  by  laws  we  cannot  interfere  with 
them  in  any  way  whatever.  The  qualification  of  voters  as  pre- 
scribed by  statutes  are  things  you  cannot  interfere  with.  When 
it  comes  to  rules  and  regulations  concerning  the  conduct  of  an 
election  I  think  we  have  the  power  to  make  them.1*  Suppose, 


356  SOUTH  DAKOTA  DEBATES,  1889 

gentlemen,  that  there  was  no  election  now  except  upon  the  Con- 
stitution to  be  passed  and  that  the  Enabling  Act  had  not  a  single 
word  about  submitting  it  to  the  voters  under  such  rules  and  regu- 
lations as  the  Convention,  by  ordinance,  prescribes.  I  wonder  if 
the  Convention,  then,  might  not  have  had  the  power  to  make  any 
ruler  or  regulations  had  the  Enabling  Act  been  silent  upon  that 
subject.  I  say,  if  it  was  given  the  power  to  make  the  Constitution 
this  would  have  carried  with  it  the  implied  powers  to  make  rules 
and  regulations  concerning  the  election  by  the  people  upon  that 
Constitution.  I  say  that  in  reference,  now  to  the  officers  for  which 
we  may  vote  at  the  same  time  that  we  vote  upon  this  Constitution 
and  the  amendments  thereto.  Remember,  the  Enabling  Act  says 
that  we  may  make  rules  and  regulations;  it  gives  us  the  right  in 
explicit  terms,  to  make  rules  and  regulations  concerning  this  Con- 
stitution and  the  amendments  in  that  same  Enabling  Act  provides 
that  at  the  same  election  we  may  vote  for  the  officers  necessary 
for  a  full  state  government  and  I  say  as  the  lawyers  do,  that  under 
the  ordinary  rules  and  constructions  of  legal  compositions  and  the 
statutory  propositions  that  it  follows  as  implied  powrer  that  we  have 
got  the  right  to  make  rules  and  regulations  concerning  the  election 
of  officers  in  that  same  election.  .  That  we  have  to  make  rules  and 
regulations  concerning  the  Constitution  and  the  amendments 
thereto. 

This  is  an  implied  power;  it  is  not  an  express  power  given  in 
the  terms  of  the  Enabling  Act  itself.  As  I  said  this  afternoon,  I 
say  now  without  any  previous  study  upon  the  subject  at  all  that 
the  officers  of  election,  themselves,  and  nobody  seems  to  dispute 
the  proposition,  may  for  the  preservation  of  order  that  extent  and 
the  purity  of  the  ballot,  make  certain  rules  and  regulations  that 
shall  govern  the  conduct  of  the  election  at  this  or  that  particular 
polling  place. 

The  question  is,  is  anybody  deprived  of  the  right  to  cast  his 
honest  vote?  Gentleman,  when  it  comes  to  irregularity  at  that 
election  the  question  of  principle,  it  is  not  even  raised,  but  it  comes 
back  to  this:  Has  there  been  a  fair  and  honest  election?  Have 
the  electors  had  the  right  and  been  given  the  opoprtunity  to  cast 
a  ballot  at  that  particular  election,  and  if  so  then  the  irregularities 
will  not  vitiate  the  election.  That  is  the  rule.  •  What,  does  this 
amendment  propose  anything  that  disfranchises  a  man?  Dis- 
franchising! Listen,  you  gentlemen  that  harped  upon  that  this 


STERLING  CONTINUES  357 


afternoon,  instead  of  disfranchisement,  taking  it  all  in  all,  it  is 
an  invitation  instead  of  a  disfranchisement, — an  invitation  for  them 
to  go  to  the  polls  and  vote  as  every  man  chooses  to  vote.  That 
is  what  it  is.  And  if  there  is  anything  that  will  make  a  man  feel  his 
independence  as  a  voter,  it  is  that  he  may  be  apart  as  this  amend- 
ment provides,  from  the  persuasive  eloquence,  unscrupuluos  inter- 
ference of  another  when  making  or  fixing  his  ballot.  Entirely 
away  from  any  outside  influence.  It  secures,  the  entire  intent  and 
object  of  it  is,  to  secure  the  entire  independence  of  the  voter.  Dis- 
franchising! When  according  to  this  amendment,  he  is  provided 
\vith  a  ballot  containing  the  name  of  every  man  who  has  been 
nominated  by  the  party  or  by  the  wishes  of  a  number  of  men  out- 
side of  the  party,  in  the  county,  in  the  legislative,  and  in  the  judicial 
district  in  which  the  man  and  the  officer  resides ;  he  is  furnished  with 
that  kind  of  a  ballot,  is  there  anything  else  about  it.  Why,  he  is 
not  limited  to  the  names  upon  it.  Aside  from  where  anyone  can 
see  him  or  intimidate  him  or  persuade  him ;  he  can  write  any  other 
name  in  there ;  he  can  place  upon  it  any  other  name  than  that  in- 
dicated in  the  ballot  itself.  Gentlemen,  the  more  I  think  of  this 
question  and  weigh  it  in  all  its  bearings,  it  leads  me  in  the  belief, 
the  more  I  think  about  it,  the  more  I  am  convinced  that  this  is  a 
reasonable  rule  and  regulation  which  we  have  the  right  to  enforce. 
Enforce  I  say,  and  I  do  not  use  those  words  without  some  thught 
as  to  what  they  mean.  I  say  this:  I  do  not  know  that  it  would  be 
ever  resisted;  I  am  inclined  to  think  that  it  would  not,  but  if  the 
precinct  entirely  refuse  to  adopt  the  system  I  would  believe  this, 
that  it  would  be  no  violation  that  the  entire  vot_  might  be  thrown 
out.  I  am  not  prepared  to  say  that  it  would  be  done  and  that  I 
would  sanction  any  such  thing  should  it  be  done.  What  might 
be  the  result,  so  far  as  our  admission  is  concern  d ;  so  far  as  any  ac- 
tion that  President  Harrison  might  take,  is  concerned,  I  would  go 
to  him  with  perfect  confidence  with  the  statement  that  this  amend- 
ment had  been  put  into  the  Schedule  and  Ordinance  and  that  the 
voters  had  been  required  to  comply  with  that  and  not  voting  in 
compliance  with  it,  their  vote  was  cast  out.  What  would  be  the 
result  ?  That  amendment  deprive  you  of  your  suffrage,  that  amend- 
ment deprive  you  of  the  right  to  exercise  your  right  as  an  Ameru  an 
voter  and  freeman, — an  amendment  like  that  which  allows  y«.u 
to  go  apart  by  yourself  in  an  apartment  in  the  polling  place  and  there 
vote  as  you  choose, —  that  amendment  which  was  designed  to 


358  SOUTH  DAKOTA  DEBATES,  1889 

secure  the  purity  of  the  ballot  box, — does  that  deprive  you  of  your 
vote  in  this  or  that  particular  precinct?  I  say,  gentlemen,  when 
there  is  this  attempt  to  secure  purity  at  the  election,  done  manfully 
and  carefully,  taking  into  consideration  the  question  that  we  had 
.that  to  decide  in  this  election,  that  no  jot  or  title  of  our  right  to  be 
admitted  will  be  effected  by  our  adding  this  amendment  to  the 
Schedule  and  Ordinance  requiring  that  it  be  one  of  the  conditions 
of  the  election  next  October. 

Mr.  Davies:  I  ask  the  indulgence  of  this  Convention  for  one 
moment  to  discuss  the  question  a  little.  We  are  met  this  evening 
to  settle  one  point ;  this  Convention  recognizes  that  to  be  a  legal 
point  and  as  one  of  the  large  majority  of  the  members  present  I  look 
to  the  legal  fraternity  to  settle  this  question.  There  is  no  doubt 
but  what  the  majority  of  the  members  here  desires  to  carry  this 
through  if  the  way  is  clear  for  this  Convention  to  do  so.  This  is  not 
a  Convention  of  the  ministers  and  preachers  here.  I  believe  it  is 
equally  dear  to  every  attorney  in  this  room  and  for  that  very  reason 
I  cannot  conscientiously  allow  this  'Convention  to  close  without 
putting  my  voice  as  attorney  in  favor  of  this  amendment.  I  will 
say,  gentlemen  of  this  Convention,  you  who  are  not  lawyers,  that 
you  have  no  business  to  expect  two  lawyers  to  agree  on  anything. 
When  we,  every  one  of  us,  have  talked  about  this  subject,  when  we 
s'tting  here  have  heard  the  presentation  of  the  views  of  the  dif- 
ferent members,  when  you  have  talked  over  all  those  that  you 
deem  to  be  law  and  argument  and  reason,  then  bring  your  own 
common  sense  of  duty  and  of  right  and  when  you  come  to  vote  on 
this,  you  have  the  power  here  to  say  that  this  shall  be.  There  are 
not  attorneys  enough  on  this  floor  to  make  a  show.  I  undertake 
to  say  that  at  least  half  of  the  lawyers  in  this  room  are  in  favor  of 
this  amendment.  Now,  come  right  back  to  the  question. 

This  afternoon  some  questions  were  asked.  I  do  not  know 
but  what  I  had  better  answer  a  few  of  them  right  here. 

Suppose  a  man  wishes  to  vote  according  to  the  old  methods, 
after  the  new  method  has  been  introduced.  What  would  be  the 
result?  The  men  authorized,  ordained  if  you  please,  by  the  Con- 
gress of  the  United  States  to  this  Convention,  those  men  ordained 
to  attend  to  that  matter,  will  attend  to  it.  How?  Just  like  this: 
Just  as  your  little  slip  tells  you,  he  must  come  and  deposit  his  ballot 
in  secret  and  if  he  does  not  prefer  to  do  that  he  has  not  got  to  do 
that  but  his  vote  will  not  be  counted.  Suppose  he  goes  to  law  about 


MR.  DAVIES  SPEAKS  359 


it ;  let  him  go.  Will  that  vitiate  this  election  ?  The  very  fact  that 
the  man  said,  I  will  not  submit  to  the  majority  and  will  vote,  that 
I  will  insist  about  voting  my  way  and  go  to  law  about  it ;  will  that 
vitiate  the  result  of  the  election?  Is  there  a  lawyer  here  tonight 
that  will  say  for  one  moment  that  this  matter  has  anything  what- 
ever to  do  with  it?  Talk  about  this  "I  won't  do  it".  I  was  asked 
by  my  wife  where  I  was  going  to  preach  next  Sunday.  Yes,  that's 
a  fact.  Now,  I  can'  t  say  today  that  I  intend  to  lie  out  of  it. 
The  highest  tribunal  in  this  land, — the  legislative  tribunal,  the  Con- 
gress of  the  United  States — not  the  Constitution  of  Dakota  but  the 
Congress  of  the  United  States  through  the  Enabling  Act,  has  pro- 
vided that  elections  will  be  held  next  October  in  this  Territory. 
It  is  provided  that  certain  things  shall  come  up  for  submission  to 
the  people  when  it  is  also  provided  that  this  Convention  shall  pre- 
pare itself  for  admission,  so  far  the  Constitution  of  Dakota  has 
nothing  to  do  with  it.  The  laws  of  'the  Territory  of  Dakota,  only 
as  far  as  they  relate  to  the  general  subject,  has  nothing  to  do  with 
the  particular  method  of  how  we  shall  vote.  Whether  there  shall 
be  one  judge  or  two  judges.  The  present  law  existing  in  the  Ter- 
ritory of  Dakota  has  nothing  for  general  and  special  elections  pro- 
vided for,  has  nothing  to  do  with  this,  because  this  is  a  special  elec- 
tion organized  by  Congress  of  the  United  States,  and  that  same 
authority  has  vested  in  us,  power  to  prepare  all  the  ways,  the  means 
of  doing  this.  I  think  this  word  "ordinance"  misleads  some  of  us. 
When  I  was  a  little  boy,  about  so  high  (indicating  about  three  feet) 
my  teacher  used  to  put  me  through  elocutionary  and  elocutionary 
drill.  I  remember  it  ran  something  like  this:  "They  did  not  leg- 
islate, they  did  not  enact,  they  ordained  that  the  people  of  the 
United  States  shall  be  free."  The  Congress  of  this  United  States 
has  permitted  us  to  ordain  that  we  shall  have  a  clear,  pure  election. 
For  one,  I  shall  vote  for  this  amendment. 

Mr.  Williams:  I  find  one  objection  to  this  section  as  it  stands. 
I  believe  that  with  that  word  out  and  two  other  words  substituted 
that  objection  will  be  obviated.  These  words  are  these.  I  find 
that  this  ordinance  does  attempt  to  legislate ;  it  attempts  to  repeal 
certain  of  the  laws  of  the  Territory  of  Dakota.  Now,  for  one,  I 
want  to  get  right  on  that.  Section  7  reads:  "The  election  pro- 
vided for  herein  shall  be  under  the  provisions  of  the  Constitution 
herewith  submitted  and  shall  be  conducted  in  all  respects  as  t-Uv- 
tions  are  conducted  under  the  general  laws  of  the  Territory  of 


360  SOUTH  DAKOTA  DEBATES,   1889 

Dakota,  except  as  herein  provided."  That  word  "except";  I 
think  we  had  better  change  that.  Why?  For  this  reason;  this 
section  says  that  this  election  shall  be  according  to  the  laws  of  the 
Territory  of  Dakota  EXCEPT  as  herein  provided.  Let  us  change 
that  and  instead  of  the  words  "Except  as  herein  provided",  not 
repeal  any  law,  but  allow  the  law  to  stand  and  then  add  these  words 
"and  regulate  it." 

Mr.  Fellows:  I  desire  to  submit  one  or  two  thoughts  in  con- 
nection with  this  very  important  question  before  the  Convention. 
I  will  say  right  here  that  I  shall  not  attempt  any  flights  of  oratory. 
I  won't  soar  very  far  from  the  issue  that  is  before  the  Convention. 
The  question  is  one  of  such  vital  importance  that  it  should  receive 
the  careful  consideration  and  unbiased  consideration  of  every  del- 
egate here.  The  question  whether  we  are  exceeding,  in  passing  the 
amendment  that  is  proposed,  the  power  that  is  vested  in  this  Con- 
vention is  one  of  much  importance.  Upon  it  depend  out  perpetuity 
and  usefulness  as  a  Convention.  I  have  no  doubt  that  nearly 
every  delegate  in  the  Convention  would  be  in  favor  of  that  amend- 
ment if,  in  his  judgment  it  was  proper  and  was  within  the  power  of 
this  Convention  to  pass  it;  therefore  I  shall  address  the  remarks 
that  I  make  solely  to  that  question  of  the  power  of  this  Convention. 

In  the  first  place,  it  is  conceded  here  by  everybody  those  who 
favor  the  amendment  and  those  who  oppose  it  that  the  only  power 
which  the  Convention  has  is  the  limited  powers  which  the  Omnibus 
Bill  gives  us.  This  Convention  sits  here  without  plenary  power,  but 
such  power  as  is  given  by  Congress.  If  this  Convention  has  the 
power  given  it  by  the  Omnibus  Bill  to  make  laws,  provide  laws  and 
enforce  these  laws,  then  it  has  the  power  to  do  just  what  we  are 
attempting  to  do  here  in  this  provision.  But,  if  on  the  other  hand 
there  is  any  question,  I  say  any  tangible  question,  if  the  standing  it 
has  got  is  subject  to  strict  construction,  if  there  is  any  question 
of  its  giving  the  power  to  this  Convention  to  become  a  legislative 
body,  to  be  a  law-making  body,  to  be  a  law-passing  body,  then 
certainly  this  amendment  can  be  passed  and  should  be  passed. 

Now,  we  will  have  an  election  next  October;  the  laws  which 
have,  by  the  provisions  of  this  act  and  by  the  Constitution  will  be, 
at  that  time  in  full  force  and  operation;  and  the  election  laws  of 
this  Territory  will  be  in  operation  in  every  city  and  town  and  hamlet 
in  this  State  of  Dakota, — or  this  will  be  at  that  time  the  Territory 
of  Dakota,— they  will  be  at  that  time  the  Territory  of  Dakota,— 


MR.  FELLOWS  361 


they  will  be  in  full  force  and  operation  as  they  are  in  force  by  the 
courts.  Now  then,  can  you,  acting  here  under  the  authority  that 
is  given  you  by  this  Omnibus  Bill,  under  the  limited  authority  that 
you  obtain  here,  together  in  this  Convention,  do  anything  that  will 
overthrow  the  force  of  those  laws  ?  That  is  the  question  confronting 
this  Convention ;  because  if  you  can  do  something  that  will  repeal 
them  by  express  enactment  or  implication,  certainly  these  laws 
will  be  in  full  force  and  effect.  What  will  these  judges  of  election 
do  on  that  day?  They  will  have  to  sign  a  solemn  oath,  they  will 
have  to  act  under  the  laws  of  the  Territory  that  are  in  force.  The 
first  thing  that  a  man  does  before  he  commences  to  act  as  Judge 
of  election,  he  has  to  swear  that  he  will,  to  the  best  of  his  under- 
standing and  ability,  perform  the  duites  of  his  office  in  accordance 
to  the  law.  In  accordance  to  what  law?  According  to  the  law 
of  the  Territory  of  Dakota,  that  is  in  force. 

You  attempt  to  say  here  in  this  ordinance  that  a  man  shall  not 
observe  the  oath  that  he  has  taken;  you  attempt  to  say  here  that 
he  shall  not  follow  the  laws  of  the  Territory  of  Dakota  that  he  has 
sworn  he  will  follow ;  that  he  will  not  administer  the  laws  of  this 
Territory  that  he  has  sworn  he  will  administer.  You  are  changing 
all  that.  You  provide  entirely  different  methods;  you  are  making 
a  provision  here  in  this  act,  I  call  your  attention  to  it  gentlemen, 
and  it  is  this:  That  in  regard  to  marking  the  tickets  that  he  will 
cast  out  the  ballots  that  are  not  marked  in  a  particular  way.  I 
tel'  you,  under  the  laws  of  this  Territory  that  are  in  force  and  will 
be  in  force  on  that  day  that  the  judges  of  election  cannot  legally 
no  anything  of  that  kind.  I  make  the  application  personally 
myself, — I  go  up  to  the  polls  on  election  day  with  a  ticket  that  ex- 
presses just  what  I  want  expressed  there.  It  is  in  conformity  with 
this  Schedule  and  Ordinance  except  that  it  does  not  conform  with 
this  amendment.  Suppose  they  refuse  to  accept  my  vote?  What 
justification  has  he  to  show?  Suppose  we  follow  it  a  little  further. 
I  commence  action  against  him  for  judgrrent  for  c^irrgo.  He  has 
set  up  the  justification  and  defense.  What  is  the  justification  and 
defence  going  to  be?  Suppose  we  carry  it  further;  suppose  the 
judges  of  the  election  presented  and  filed  a  large  number  of  ballots 
cast  there  in  accordance  to  the  ordinance  you  are  attempting  to 
pass  here  that  are  not  in  exact  conformity  to  it.  Must  they  be 
thrown  out  in  conformity  with  that  section  of  the  amendment? 
What  is  the  effect  of  that  upon  the  election?  Have  those  judges 


362  SOUTH  DAKOTA  DEBATES,  1889 

of  election  the  right  to  discard  the  votes  that  perhaps  were  placed 
there  in  the  ballot  box,  that  expressed  their  will  and  intention 
without  any  defense  of  that  kind. 

Now,  I  do  not  believe  there  is  anything  of  that  kind.  I  am 
in  favor  of  purity  in  election ;  I  would  like  to  see  all  the  safeguards 
thrown  around  the  polls  that  can  be  thrown  around  them.  I  do 
not  believe  there  is  any  such  burning  necessity  existing  at  this 
time  to  take  the  chances  of  this  experiment  we  are  taking  here  if 
we  adopt  the  amendment  of  this  kind.  For,  the  question  of  power  is 
in  doubt,  if  there  is  a  question  of  power  at  all  and  there  is  at  least 
a  question  in  the  minds  of  this  Convention  here  if  there  is  a  question 
in  regard  to  this  "can  we,  friends,  considering  the  importance  of 
this  election,  considering  the  fact  that  statehood,  perhaps,  of  South 
Dakota  depends  upon  the  solution  of  this  question.  Can  we  afford 
to  take  any  chances, — to  say  that  we  will  take  this  procedure  when 
there  is  doubt  as  to  its  being  the  right  course;  when  by  taking  the 
course  that  has  been  pursued  in  this  Territory  year  after  year  to 
the  general  satisfaction  of  this  people."  We  are  standing  upon 
grounds  that  are  perfectly  safe  and  solid  with  no  question  about  the 
result  of  this. 

(Calls  of  "Question,  question"  from  different  parts  of  the  room.) 

Mr.  Huntley:  I  want  to  ask  the  gentleman  how  he  reads  the 
first  sentence  in  that  article  to  which  this  amendment  is  offered, 
that  the  election  provided  for  herein  shall  be  conducted  in  all  re- 
spects as  elections  are  conducted  under  the  general  laws  of  the  Ter- 
ritory of  Dakota,— Article  7'  The  Committe  whose  report  this 
amendment  is  made  to,  this  Committee  have  assumed  that  they 
had  authority  to  dictate. 

Mr.  Hole:  I  suggest  that  the  gentleman  should  not  answer 
his  own  question.  That  question  was  asked  awhile  ago;  I  do  not 
wish  to  enter  into  this  discussion ;  I  would  answer  that  question  be- 
cause it  has  not  been  answered.  This  question  has  been  before  the 
Committee  and  has  had  considerable  attention.  We  are  free  to  say 
that  where  there  was  any  possible  doubt  we  have  taken  the  safe 
side,  deeming  it  the  best  course  to  pursue. 

Mr.  Lee:  I  will  not  detain  this  Convention  long.  I  wish  to 
suggest  that  there  is  a  moral  side  and  a  legal  side  to  all  questions.  I 
have  a  mortgage  on  my  neighbor's  cow,  their  only  cow.  On  the 
legal  side  I  could  go  and  foreclose  that  mortgage  and  take  that  cow. 
Perhaps  it  is  the  only  cow  of  a  widow  with  little  children.  When  I 


FATHER  LEE  POURS  OIL  363 

take  the  cow  away  they  have  got  scarcely  nothing  else  to  live  upon. 
Such  an  action  outrages  the  moral  side  of  the  question.  I  believe 
my  constituency  are  mostly  of  excellent  morals  and  good  men. 
The  majority  of  the  voters  are  in  favor  of  this  amendment  and 
all  taxpayers  are.  We  are  about  to  cast  the  greatest  vote  ever 
cast.  And  more  men  will  show  up  then  any  other  time  that  we 
will  ever  have  seen  in  South  Dakota.  I  have  to  stand  here  for  the 
lawyers  and  for  the  preachers.  I  was  made  a  lawyer  in  1857,  a 
preacher  in  1860.  The  lawyer  part  of  me  is  a  little  older  than  the 
preacher.  I  tell  you  because  I  want  the  farmers  that  own  the  real 
soil,  and  the  merchant  and  the  men  who  pay  the  taxes  to  have  the 
right  to  say  how  this  thing  shall  be.  I  want  them  to  cast  the  vote 
that  will  carry.  I  do  not  want  the  dead  beat  and  dude  and  loafer 
and  that  beautiful  class  to  be  shipped  in  here  and  boarded  until 
after  election.  They  have  got  men  who  will  come  here  rom  Iowa, 
Nebraska,  Minnesota  and  from  Canada,  that  if  you  will  pay  their 
board  until  they  have  stayed  long  enough  to  vote  they  will  come  in 
hoards.  We  want  to  make  them  pay  taxes  before  they  vote.  The 
old  pioneers  that  came  here  and  lived  and  fought  and  got  their 
farms  and  families  and  children  and  their  business  and  trade  and 
profession,  who  ought  to  run  this  government.  I  say  this  is  right. 
It  is  just  and  it  will  do  no  harm.  In  my  town,  but  a  few  days  ago, 
there  were  four  farmers  about  four  miles  from  town.  Well,  I  went 
out  and  got  them  to  vote ;  but  you  do  not  have  any  trouble  to  get 
them  out  to  vote  and  vote  in  the  city  and  double  our  taxes.  Men 
who  do  not  own  a  foot  of  land,  but  they  are  voters  and  they  out-v<  >te 
us  in  the  city  and  double  up  our  taxes  before  we  know  anything 
about  it.  I  tell  you,  all  my  life  time,  this  idea  has  been  growing 
with  my  years  that  there  should  be  a  change  in  our  election  laws. 
I  have  been  judge  of  election  in  my  time;  I  have  said  "We  won't 
allow  you  to  come  into  this  voting  room  at  all ;  stand  outside  and 
put  your  vote  in  through  the  window."  They  had  to  do  it  and 
I  did  not  hear  of  any  man  being  disfranchised  either.  These  cir- 
cumstances alter  cases.  I  tell  you  I  am  going  to  vote  for  this 
amendment.  This  is  the  preacher  side  of  me.  I  believe  it  is  right. 
Now,  in  regard  to  the  lawyer  side  I  have  some  little  doubts 
but  they  are  not  very  strong.  I  believe  it  will  be  tried  in  less  than 
ten  years  in  every  state  in  the  Union.  I  believe  the  time  in  our 
history  as  a  Territory  is  ripe  for  this  trial  now.  In  standing  before 
a  jury  defending  a  man  charged  with  crime,  I  say:  "Gentlemen  of 


364  SOUTH  DAKOTA  DEBATES,  1889 

the  jury,  if  you  have  any  reasonable  doubts  that  my  client  com- 
mitted this  crime,  you  will  have  cause  to  clear  him.  You  had  better 
let  a  thousand  crimes  go  unpunished  than  kill  an  innocent  man. 
That  is  law;  I  shall  give  this  amendment  the  benefit  of  the  doubt 
and  vote  for  it  in  this  Convention. 

Mr.  Corson:  I  do  not  desire  to  take  the  time  of  this  Convention 
to  discuss  the  various  phases  of  this  subject  that  have  been  touched 
upon  in  this  debate.  But  one  thing  seems  to  me  Mr.  President,  is 
very  apparent,  and  that  is,  that  there  is  a  safe  course  in  this  matter 
which  can  be  pursued  and  a  course  that  can  be  pursued  that  is  not 
so  safe.  It  would  seem  from  the  discussion  this  afternoon  that  there 
is  grave  doubts  about  the  right  of  the  Convention  to  pass  this 
amendment;  to  make  changes  in  the  law  applicable  to  this  election 
the  ensuing  fall.  Now,  like  the  gentleman  from  Spink,  Mr.  Presi- 
dent, I  have  been  here  in  the  Territory  of  Dakota  for  many  years. 
I  have  worked  hard  and  long  for  statehood.  I  do  not  feel,  Sir,  like 
endangering  that  at  this  time  by  passing  this  amendment  and 
placing  upon  this  election  some  restrictions  about  which  there  is 
grave  doubts  as  it  seems  to  me  that  at  this  time  we  can  ill  afford  to 
do  that.  This  is  a  matter  of  grave  importance;  this  matter  of 
this  election  and  the  returns,  etc.  are  to  go  before  the  President 
of  the  United  States  and  if  it  should,  in  his  opinion,  turn  out  that 
this  was  an  illegal  amendment  and  the  provisions  of  it  were  illegal 
then,  there  would  have  been  no  election  of  this  Constitution  and 
the  whole  thing  would  fall  to  the  ground  and  we  would  commence 
new  again.  I  ask,  gentlemen,  if  we  can  afford  to,  at  this  time, 
take  never  so  remote  a  chance  of  a  disasterous  termination  of  our 
hopes. 

I  have  lived  in  Dakota  twelve  years  and  I  have  never  seen  such 
a  state  of  corruption  in  regard  to  voting  as  has  been  proclaimed  here. 
I  hear  that  we  have  the  finest  population  of  the  American  educa- 
tion that  there  is  in  the  world ;  that  we  have  forty  thousand  farmers, 
intelligent,  honest  and  independent.  I  know  we  have  ten  thousand 
miners  that  are  equally  intelligent  and  equally  honest ;  I  know  we 
have  twenty  to  thirty  thousand  mechanics  that  are  honest  and 
disposed  to  go  to  the  election  places  and  exercise  their  right  gravely 
and  like  honorable  men.  I  do  not  know  where  these  men  are  that 
are  so  corrupt.  I  believe  nobody  intentionally  would  do  such  a 
thing,  but  I  do  believe  the  fair  fame  of  Dakota  has  been  slandered 


JUDGE  GORSOX  ox  ELECTION'S  365 

this  afternoon  by  having  it  appear  that  there  is  set  corruption  in 
our  elections  in  Dakota. 

I  believe  it  is  doing  an  injustice  to  her  people  to  assume  to  pre- 
sume that  there  was  such  election  frauds  practiced  in  our  Territorial 
elections.  Our  laws  and  penalties  are  very  severe  in  connection 
with  our  election  laws  as  it  now  stands.  I  understand  it  is  con- 
ceded by  all  parties  that  they  can  be  enforced  and  will  be  enforced 
next  fall ;  while  there  is  no  power  to  enforce  the  provisions  of  this 
amendment.  I  express  no  opinion  one  way  or  the  other;  I  simp'y 
say  this:  That  there  is  sufficient  doubt  about  the  matter,  and 
there  is  sufficient  doubt  about  the  result  that  might  ensue  that 
makes  it  a  part  of  wisdom  to  pause  here  on  the  threshold  and  see 
whether  we  had  not  better  forego  the  matter  of  this  amendment 
and  take  the  absolutely  safe  course;  take  a  course  about  which  we 
will  have  no  doubts  from  this  time  until  we  are  a  State.  Hence, 
Mr.  President,  I  shall  vote  against  this  amendment  and  as  it  has 
been  said  and  perhaps  repeated  very  often,  I  presume,  there  is  no 
gentleman  here  that  is  not  in  favor  of  a  good  election  law ;  not  in 
favor  of  having,  thrown  around  the  election  all  the  safe-guards  pos- 
sible, but  as  has  been  said  here,  we  are  not  a  legislative  body,  this 
is  a  matter  for  another  body  to  consider. 

Let  us  then  pursue  the  course  that  is  marked  out  for  us;  that 
is  a  safe  course,  and  not  venture  upon  any  experiments  of  this  1  ind  ; 
it  might  be  a  costly  experiment  for  us  to  make. 

Mr.  Peck:  I  do  not  propose  to  take  any  length  of  time,  but 
simply  to  refute  a  few  statements  that  have  been  made.  I  agreed 
in  the  first  place  to  explain  but  a  few  remarks  that  I  thought  was 
misunderstood.  In  the  first  place  I  am  one  of  those  who  came  in 
here  to  be  told  by  the  lawyers  just  exactly  what  my  duties  are.  I 
have  read  and  practiced  law  enough  to  satisfy  myself  that  I  cannot 
understand  law  to  my  own  satisfaction.  I  came  here  after  giving 
the  Omnibus  Bill  my  full  consideration  to  satisfy  myself  as  to  the 
fact  of  our  right.  I  have  no  doubt  at  all  or  any  question  but  what 
we  have  got  to  make  the  rules  and  regulations  and  ordinances 
whether  you  could  adopt  the  Territorial  law  or  other  law,  to  control 
the  coming  election.  One  of  the  two  we  have  got  to  do. 

I  think  there  is  a  mistaken  idea  that  if  we  adopt  nothing  that 
the  Territorial  law  will  govern  the  first  election.  I  do  not  believe 
that  there  will  be  any  law  at  all  if  we.  do  so.  For  that,  only  as  we  pro- 
vide one  for  this  election.  I  believe  that  the  Committee  thoroughly 


366  SOUTH  DAKOTA  DEBATES,  1889 

understood  that ;  that  they  thought  that  we  have  got  to  get  it  into 
the  ordinance  to  have  a  law  and  that  they  adopted  the  election  law 
of  the  Territory. 

Now,  what  must  we  seek  to  do  with  these  few  rules?  Just 
enough  to  cover  two  things.  I  do  not  want  any  election  law  that 
is  foul,  fraud  and  besmirched  with  unbecoming  procedure  that  has 
been  practiced  for  a  long  time.  That  is  fraudulent  in  the  printing 
of  ballots. 

We  simply  provide  first,  for  what?  We  simply  deal  with  two 
things.  We  provide  first  for  the  printing  of  ballots  by  authority 
and  in  order  to  do  that  we  have  got  to  have  a  common  and  general 
method  of  nominating  Second,  to  provide  for  certain  machinery 
to  deliver  these  ballots,  first  to  the  persons  who  have  the  right  to 
go  with  them  unmolested  and  put  them  into  the  ballot  box.  If 
this  is  any  infringment  upon  any  person's  rights  I  fail  to  see  it. 
I  have  studied  very  carefully  the  Australian  election  laws.  I  fay 
there  can  be  no  distortion  of  this  thing  into  an  infringment  of  any 
person's  rights.  Having  arrived  at  that  conclusion  that  we  have 
the  right,  without  doubt,  to  pass  thjs  law  the  next  question  was 
as  to  its  expediency.  My  own  opinion  is,  that  we  should  retain  the 
old  law  as  far  as  we  could  and  get  an  ordinance  to  free  and  purify 
the  ballot.  The  real 'simple  phases  of  all  the  election  laws  of  Dakota 
shall  govern  this  election  except  just  simply  as  to  the  printing  of 
the  ballots  by  authurity  and  stopping  fraud  and  abuse  to  the  ballot 
system  of  distributing  and  handing  them  to  the  several  perrons  as 
I  said  before,  who  are  entitled  to  receive  these  ballots  and  protect 
the  voter  in  the  exercise  of  his  rights. 

Mr.  VanBuskirk:  If  we  may  legislate  to  the  extent  as  provided 
by  the  rules  and  regulations  advanced  by  this  amendment,  may  not 
we  make  that  penal  ?  If  a  man  evades  the  provisions  of  this  amend- 
ment it  must  follow  if  we  may  pass  such  a  regulation  as  contemp'ated 
by  this  amendment  may  not  we  make  it  penal  if  a  man  violates  the 
provisions  of  this  amendment?  I  simply  say  that  there  are  severe 
penalties  under  Territorial  laws  that  require  that  we  protect  these 
rules. 

The  Chairman:     The  question  before  the  Convention  is  Section 
7  of  the  report  of  the  Committee  on  Schedule  and  Ordinance.     To 
that  the  gentleman  from  Hamlin  moves  this  amendment. 
Mr.  Peck:     He  seeks  to  amend  Section  7. 


ELECTION  REGULATIONS  367 

The  Chairman:  Section  7  is  before  the  Convention.  He  asks 
to  amend  Section  7. 

Mr.  Williams:     We  have  not  moved  the  adoption  of  Section  7. 
The  Chairman :     Section  7  of  the  report  of  the  Committee  on 
Schedule  and  Ordinance  is  before  the  Convention  and  to  that  the  gen- 
tleman   from    Hamlin    moves    that  the  following  be  attached  as 
amendment  to  Section  7. 

RULES  REGULATING  THE  ELECTION  TO  BE  HELD  UNDER  THE  AU- 
THORITY OF  THE  ENABLING  ACT  FOR  THE  ADOPTION  OR  REJEC- 
TION OF  THE  CONSTITUTION  AND  THE  ARTICLES  SEPARATELY 
SUBMITTED  THEREWITH  AND  THE  REPRESENTATIVES  IN  CON- 
GRESS ;  ALSO  STATE  AND  JUDICIAL  OFFICERS  FOR  SOUTH  DAKOTA. 
SECTION  1.     That  at  the  election  to  be  held  on  the  first  day  of 
October,  1889,  the  election  laws  now  in  force  in  the  Territory  of 
Dakota  shall  apply  to  and  govern  such  election  except  as  herein- 
after specially  provided. 

SEC.  2.  Nominations  for  State  officers,  Representatives  in 
Congress  and  Judges  of  the  Supreme  Court  shall  be  made  by  any 
State  convention  and  certified  to  by  the  Chairman  and  Secretary 
of  such  convention,  according  to  form  number  one  (1)  hereinafter 
provided,  or  by  any  three  hundred  1300)  legal  voters  in  South  Da- 
kota attaching  their  names  to  a  paper  nominating  candidates  and 
filing  the  same  with  the  Territorial  Secretary. 

SEC.  3.  Nominations  for  members  of  the  State  Legislature, 
Judges  of  the  Circuit  Court  and  Judges  of  the  County  Courts,  shall 
be  made  by  any  convention  held  in  legislative  and  judicial  districts 
or  county  for  which  any  su'ch  officer  is  to" be  elected,  and  certified 
to  by  the  Chairman  and  Secretary,  according  to  form  No.  2  herein- 
after prescribed,  or  by  any  one  hundred  legal  voters  of  any  legisla- 
tive of  judicial  district  or  county,  by  attaching  their  names  to  a 
paper  nominating  such  officers,  and  filing  the  same  with  the  county 
Clerk  or  County  Auditor  to  which  such  nominations  refer. 

SEC.  4.  All  certificates  of  nominations  and  nominating  papers 
provided  for  in  Sec.  Two  (2)  shall  be  filed  with  the  Territorial  Secre- 
tary by  the  fifteenth  day  of  September,  and  all  those  provided  for 
in  Section  Three  (3)  shall  be  filed  with  the  County  Clerk  or  County 
Auditor  by  the  twentieth  day  of  September,  1889,  and  no  certificate 
of  nomination  or  nominating  papers  shall  be  acted  upon,  except 
accompanied  with  the  consent  in  writing  of  the  person  or  persons 
therein  nominated,  provided  that  in  case  of  death  or  resignation, 
the  authority  making  such  nomination  shall  be  permitted  to  fill 
such  vacancy  by  a  new  nomination. 

SEC.  5.  The  Territorial  Secretary,  on  the  receipt  by  him  of 
the  nominating  papers  lu-ivinhrt'orc  mentioned,  shall  forthwith 
transmit  true  copies  of  the  same  to  the  County  Clerks  or  County 
Auditors  of  the  several  counties  in  South  Dakota. 


368  SOUTH  DAKOTA  DEBATES,  1889 

SEC.  6.  The  County  Clerk  or  County  Auditor  shall,  after  the 
expiration  of  the  time  for  receiving  the  nominating  papers,  forth- 
with cause  to  be  printed  such  a  number  of  ballot  papers  as  will  be 
sufficient  for  the  purpose  of  the  election,  and  the  number  necessary 
for  each  polling  place  shall  be  bound  or  stitched  in  a  book  of  con- 
venient form,  and  the  County  Clerk  or  County  Auditor  shall  cause 
to  be  printed  in  English,  in  large  type,  on  cards,  instructions  for  the 
guidance  of  voters,  in  preparing  their  ballot  paper;  such  Clerk  or 
Auditor  shall  furnish  ten  (10)  copies  of  such  instructions  to  the 
Judges  of  each  election,  precinct,  and  said  Judges  shall  cause  them 
to  be  posted  both  inside  and  outside  of  the  polling  place,  and  said 
County  Clerk  or  County  Auditor  shall,  as  provided  by  law,  cause  to 
be  delivered  to  the  proper  Judges  of  election  the  ballot  box  and  all 
poll  books  and  returns  now  by  law  required  or  by  this  ordinance 
required  to  conduct  and  complete  the  election,  also  the  ballot  papers, 
at  least  two  (2)  days  before  polling  the  vote;  and  shall  cause  to  be 
published  in  each  newspaper  in  the  county  a  true  copy  of  the  ballot 
paper  and  card  of  instructions,  said  publication  to  be  in  the  last 
issue  of  said  papers  before  the  day  of  voting. 

SEC.  7.  Every  ballot  paper  shall  contain  the  names  of  all 
candidates  for  Representatives  in  Congress,  State,  and  Judicial 
officers,  and  members  of  the  Legislature,  and  the  name  of  the  politi- 
cal party  to  which  each  candidate  belongs  ;  also  the  form  of  the  bal- 
lot for  the  adoption  or  rejection  of  the  Constitution  and  the  articles 
separately  submitted  therewith,  as  provided  in  this  ordinance. 

SEC.  8.  Each  polling  place  shall  be  furnished  with  a  sufficient 
number  of  compartments,  in  which  the  voter,  screened  from  obser- 
vation, shall  mark  his  ballot  paper,  and  a  guard  rail  so  constructed 
that  only  persons  within  the  rail  can  approach  within  ten  (10)  feet 
of  the  ballot  box,  and  it  shall  be  the  duty  of  judges  of  election  in 
each  polling  place  to  see  that  a  sufficient  number  of  such  places  be 
provided  and  shall  appoint  a  person  to  guard  the  entrance  to  such 
compartments  and  he  shall  be  paid  the  same  as  Judges  of  election. 

SEC.  9.  The  voters  admitted  one  at  a  time  for  each  compart- 
ment where  the  poll  is  held  shall  declare  his  name,  and  when  per- 
mitted by  the  Judges  to  vote  his  name  shall  be  entered  on  the 
voter's  list,  and  he  shall  receive  from  one  of  the  Judges  of  election 
a  ballot  paper  on  the  back  of  which  initials  of  one  of  the  Judges  of 
election  shall  be  so  placed  that  when  the  ballot  paper  is  folded  they 
can  be  seen  without  opening  it,  and  the  Judges  of  election  shall 
instruct  him  how  to  mark  his  ballot  paper. 

SEC.  10.  The  voter,  on  receiving  his  ballot  paper,  shall  forth- 
with proceed  to  one  of  the  compartments  of  the  polling  station  and 
there  without  undue  delay,  not  exceeding  five  minutes,  mark  his 
ballot  paper  by  putting  a  cross  (X)  in  the  space  to  the  right-hand 
side  of  the  name  of  the  person  for  whom  he  desires  to  vote  and  if 
he  desires  to  vote  for  any  person  whose  name  is  not  on  his  ballot 
paper  he  may  write  or  paste  on  his  ballot  paper  the  name  of  the 


ELECTION  REGULATIONS  369 

person  for  whom  he  desires  to  vote,  and  shall  theu  fold  up  his  bal- 
lot paper  so  that  the  initials  on  the  back  can  be  seen  without  open- 
ing, and  hand  it  to  one  of  the  Judges  who  shall,  without  open- 
ing it,  ascertain  that  the  initials  are  on  it  and  that  it  is  the 
same  ballot  paper  given  to  the  voter,  and  shall  then  place  it  in 
the  ballot  box  and  the  voter  shall  quit  the  polling  compartment 
as  soon  as  his  ballot  paper  has  been  put  in  the  ballot  box. 

SEC.  11.  The  Judges  of  election  on  application  of  any  voter 
who  is  unable  to  vote  in  the  manner  provided,  shall  assist  such  other 
by  marking  his  ballot  paper  in  the  manner  desired  by  such  voter 
in  the  presence  of  the  persons  permitted  to  be  in  the  compartment 
occupied  by  the  Judges  and  no  others,  and  shall  place  such  ballot 
paper  in  the  ballot  box.  and  when  judges  of  election  shall  not  under- 
stand the  language  spoken  by  the  voter  claiming  to  vote,  they  shall 
swear  an  interpreter,  who  shall  be  the  means  of  communication  be- 
tween them  and  the  voter  with  reference  to  all  matters  required  to 
enable  such  voter  to  vote. 

SEC.  12.  A  voter  who  has  inadvertently  dealt  with  the  ballot 
paper  given  him  in  such  manner  that  it  cannot  be  conveniently 
used,  may,  on  delivering  the  same  to  the  Judges,  obtain  another 
ballot  paper  in  place  of  that  delivered  up. 

SEC.  13.  Any  voter  refusing  to  take  the  oath  or  affirmation  of 
qualification  as  required  by  law,  when  requested  to  do  so,  shall  not 
receive  a  ballot  paper,  or  be  permittted  to  vote. 

SEC.  14.  No  person  shall  be  allowed  to  take  his  ballot  paper 
out  of  the  polling  place,  nor,  except  as  in  the  case  provided  for  by 
Section  Eleven  (11),  to  show  it  when  marked  to  any  person  so  as 
to  allow  the  name  of  the  candidate  for  whom  he  has  voted  to  be 
known,  and  any  voter  who  violates  or  refuses  to  comply  with  this 
ordinance  shall  not  be  permitted  to  vote. 

SEC.  IS.  In  addition  to  the  Judges  and  Clerks  of  election,  one 
Watcher  at  each  polling  precinct  for  each  political  party  present- 
ing a  candidate  or  candidates  for  the  suffrage  of  the  voters  and  no 
others  shall  be  permitted  to  be  in  the  compartment  cccupied  by  the 
Judges,  Clerks  and  Watcher  shall,  before  entering  upon  their  re- 
spective duties  take  and  subscribe  to  the  following  oath  or  affir- 
mation: 

I,  John  Jones,  do  solemnly  swear  (or  affirm)  that  I  will  keep 
secret  all  the  names  of  the  candidates  for  whom  any  voter  may  have 
marked  his  ballot  paper  in  my  presence  at  this  election,  so  help  me 
God. 

SIC.XED:  J.  J. 

Sworn  (or  affirmed)  before  me  at this. 

first  day  or  October,  1889. 

Justice  of  the  Peace  or  Judge  «f  Election. 

SEC.  16.  Immediately  on  the  close  of  the  poll  the  Judges  in 
the  presence  of  the  Clerks  -if  election  and  such  of  tin-  watchers  and 


370  SOUTH  DAKOTA  DEBATES,  1889 

voters  as  desire  to  be  present,  shall  open  the  ballot  box  and  proceed 
to  count  the  number  of  votes  for  each  candidate;  in  doing  so.they 
shall  reject  all  ballot  papers  which  have  not  been  supplied  by  them 
as  Judges  of  said  election,  all  ballots  by  which  more  candidates  have 
been  voted  for  than  there  are  officers  to  be  elected ;  also  those  upon 
which  there  are  any  writing  or  mark  by  which  the  voter  can  be 
identified;  all  the  ballots  voted  and  counted,  and  those  rejected, 
those  spoiled  and  those  unused,  shall  be  put  into  separate  envelopes, 
and  all  these  parcels  shall  be  endorsed  so  as  to  indicate  their  con- 
tents, and  be  placed  in  the  ballot  box  and  a  return  of  the  result  of  the 
election  at  the  polling  precinct  shall  be  made  to  the  County  Clerk 
or  County  Auditor,  as  now  required  by  law  for  the  election  of  mem- 
bers of  the  Territorial  Legislature. 

SEC.  1 7 .  All  expenses  incurred  under  these  rules  to  b.e  a  charge 
against  the  county  and  audited  and  paid  as  other  claims  against  the 
county. 

The  Chairman:     Is  the  Convention  ready  for  the  question? 

Calls  of  question  from  different  portions  of  the  house. 

The  Chairman:  Gentlemen  as  your  names  are  called,  those 
favoring  the  adding  of  this  proposed  amendment  to  Section  7  of 
the  report  of  the  Committee  on  Schedule  and  Ordinance  will  answer 
yes ;  and  those  opposed  will  answer  no. 

AYES — Messers.  Anderson,  Atkinson,  Berdahl,  Clough,  Davies, 
Dickinson,  Downing,  Eddy,  Gifford,  Goddard,  Hall,  Hartley, 
Huntly,  Lee,  Matson,  Murphy,  Peck,  Ramsey,  Spooner,  Sterling, 
Wescott,  Wheeler,  Willis,  Williams,  Williamson,  Wood  of  Spink, 
Young.— (27). 

NOES — Messrs.  Boucher,  Buechler,  Coats,  Cook,  Cooper,  Corson, 
Couchman,  Craig,  Diefendorf,  Edgerton  of  Yankton,  Fellows, 
Fowles,  Henninger,  Hole,  Houlton,  Humphrey,  Jolley,  Kimball, 
Lyons,  McFarland,  O'Brien,  Ringsrud,  Scollard,  Sherwood,  Stod- 
dard,  Smith,  Stroupe,  Thompson,  Van  Buskirk,  Van  Eps,  Van 
Tassel,  Whitlock,  Zitka,  Mr.  President.— (34). 

The  Chairman:  There  are  twenty-seven  (27)  ayes  and  thirty- 
four  (34)  noes,  so  the  amendment  is  lost. 

Mr.  Williams:  I  move  to  amend  Section  7  by  striking  out 
the  word  "except"  where  the  same  occurs  in  the  fourth  line  of  said 
section  and  insert  in  lieu  thereof  the  words  "and  Rules  and  Regu- 
lations". 

This  motion  did  not  receive  a  second. 

Mr.  Hartley:     I  move  that  Section  7  be  adopted. 

Mr.  Humphrey:  I  move  that  the  word  "annul"  be  substituted 
for  the  word  "avoid"  where  it  occurs  in  Section  7. 

Motion  received  a  second. 


SCHEDULE  371 


The  Chairman :  The  gentleman  from  Faulk  moves  to  substitute 
the  word  "annul"  in  line  seven  for  the  word  "avoid". 

Those  favoring  the  motion  will  say  aye;  the  noes  appear  to 
have  it;  the  noes  have  it.  The  question  before  the  Convention  is 
upon  Section  7. 

The  Chairman:  Those  of  the  opinion  that  the  motion  to  adopt 
Section  Seven  of  the  report  of  the  Committee  on  Schedule  and 
Ordinance  prevail  say  aye;  those  of  the  contrary  opinion  say  no. 
The  ayes  have  it.  Section  7  is  adopted. 

Mr.  Williams:  As  it  is  a  manifestation  of  the  members  of 
this  Convention  to  leave  no  doubt  as  to  the  rules,  I  move  that  fur- 
ther consideration  of  this  report  be  postponed  until  Thursday 
of  next  week. 

Motion  received  a  second. 

The  Chairman:  It  is  moved  and  seconded  that  further  con- 
sideration of  this  report  be  postponed  until  next  week,  Thursday. 
Are  you  ready  for  the  question? 

Mr.  Hole:  Gentlemen;  I  trust  you  will  not  take  that  action 
at  the  present  time  as  this  report  has  been  in  your  hands  now 
twelve  hours  and  here  will  not  be  a  time  in  the  history  of  this  Con- 
vention when  we  have  so  full  a  representation  of  the  delegation 
as  we  now  have.  A  large  number  of  those  here  tonight  intend  to 
leave  tomorrow  morning.  I  think  that  I  will  offer  a  substitute  to 
the  gentleman's  motion  that  we  adopt  the  balance  of  the  report 
of  the  Committee  on  Schedule  and  Ordinance. 

This  motion  received  a  second. 

The  Chairman:  The  gentleman  from  Beadle  moves  as  an 
amendment  that  the  Convention  do  now  adopt  the  remainder  of 
the  report  of  the  Committee  on  Schedule  and  Ordinance.  Are 
you  ready  for  the  question? 

Mr.  Williams:  I  would  move  an  amendment  to  that  amend- 
ment that  Section  19  of  the  report  be  amended  so  as  to  read  as 
follows:  "The  officers  provided  for  in  this  ordinance,  to  be  elected 
on  October  1st,  A.  D.,  1889,  shall  continue  to  hold  and  exercise 
the  duties  of  their  respective  offices  until  their  respective  suc- 
cessors are  elected  and  qualified  under  and  by  virtue  of  this  Con- 
stitution and  laws  passed  in  pursuance  thereto. 

The  Chairman:  A  motion  was  made  to  postpone  further  con- 
sideration of  this  report  until  next  Thursday;  an  amendment  was 
offered  that  the  balance  of  the  report  be  adopted.  Now  an  amend- 


372  SOUTH  DAKOTA  DEBATES,  1889 

ment  was  made  to  the  amendment  that  Section  19  be  amended, 
striking  out  Section  19  as  it  appears  and  inserting  in  lieu  thereof 
the  words :  '  'The  officers  provided  for  in  this  ordinance  to  be  elected 
October  first,  A.  D.,  1889,  shall  continue  to  hold  and  exercise  the 
duties  of  their  respective  offices  until  their  respective  successors 
are  elected  and  qualified  under  and  by  virtue  of  this  Constitution 
and  laws  passed  in  pursuance  thereto." 

Mr.  Williams:  In  drawing  this  hastily  and  stating  my  motion 
I  have  not  yet  presented  what  I  mean ;  that  is  to  substitute  for  the 
first  section  that  part  of  the  section  that  designates  officers  is  not 
to  be  touched, — that  is  what  I  mean  to  say.  It  will  only  be  the 
first  paragraph ;  it  will  end  at  the  word  "follows".  I  want  to  strike 
that  part  of  it  out. 

Mr.  Hole:  I  will  say  that  that  matter  has  been  extensively 
discussed  by  the  Committee  and  that  we  have  heard  the  various 
arguments  on  that  and  that  they  come  to  a  unanimous  conclusion 
that  that  would  not  do  to  pass  it. 

Section  7  provides  that  this  election  is  under  this  Constitution. 

Mr.  Williams:  I  dislike  very  much  to  worry  this  Convention, 
but  I  cannot  let  that  pass  without  raising  this  objection  and  if  I 
have  not  expressed  all  that  I  intended  in  offering  it, it  wrill  come  now 
in  what  I  want  to  say.  I  want  to  read  that  section  which  provides 
the  tenure  of  office  of  all  officers.  "The  tenure  of  all  officers,  whose 
election  is  provided  for  in  this  Schedule,  on  the  first  day  of  October, 
A.  D.,  1'889,  shall  be  as  follows: 

The  Governor,  Lieutenant  Governor,  Secretary  of  State,  Audi- 
tor, Treasurer,  Attorney  General,  Superintendent  of  Public  In- 
struction, Commissioner  of  School  and  Public  Lands,  Judges  of 
the  County  Courts,  shall  hold  their  respective  offices  until  the  fint 
Tuesday  after  the  first  Monday  in  Januray,  A.  D.,  1892,  at  twelve 
o'clock  M.,  and  until  their  successors  are  elected  and  qualified." 

"The  Judges  of  the  Supreme  Court  and  Circuit  Courts,  shall 
hold  their  offices  until  the  first  Tuesday  after  the  first  Monday  in 
January,  A.  D.  1894,  at  twelve  o'clock  M.,  and  until  their  &uc- 
c^ssors  are  elected  and  qualified;  subject  to  the  provisions  of  Sec- 
tion 26,  of  Article  V,  of  the  Constitution."  Now,  to  make  my  ob- 
jection known  I  will  next  read  the  last  paragraph  and  my  objection 
to  that  is  this;  that  this  Convention,  by  ordinance  attempts  to 
prescribe  the  tenure  of  the  officers  provided  for  in  this  Constitution. 

"The  terms  of  office  of  the  members  of  the  Legislature,  elected 


TENURE  OF  OFFICE  373 

at  the  first  election  held  under  the  provisions  of  this  Constitution, 
shall  expire  on  the  first  Tuesday,  after  the  first  Monday  in  January, 
one  thousand  eight  hundred  and  ninety-two.  (1892)". 

This  does  not  prescribe  the  term  of  office  of  those  to  be  elected 
in  October  1889;  but  instead  of  describing  the  tenure  of  office  of 
the  officers  elected  in  1889  it  prescribes  the  term  of  office  of  the 
first  officers  elected  under  the  Constitution.  It  cannot  be  earlier 
than  1890  unless  the  Legislature  prescribes.  I  further  say  that  in 
prescribing  that  these  officers  mentioned  in  the  second  paragraph 
shall  hold  until  the  first  Monday  in  January,  1892.  It  extends  the 
term  of  office  of  these  officers  to  be  elected  at  the  election  the  first 
of  October  beyond  the  time  prescribed  by  the  Constitution  ;  extends 
the  term  of  the  member  of  the  Supreme  Court  and  County  Court, — 
extends  the  time  of  their  office  till  January  1894.  I  take  it  that 
it  is  in  direct  opposition  and  contrary  to  the  purposes  of  this  Con- 
vention by  ordinance  prescribed.  That  is  the  business  of  the  Con- 
vention to  prescribe  the  term  of  office  of  the  officers  elected  in  this 
election  in  1889  and  no  other,  and  that  they  cannot  fill  the  pre- 
scribed term  of  their  office  for  any  other  election  a  long  length  of 
time,  that  the  time  which  the  tenure  of  office  of  the  officers  to  be 
elected  under  this  Constitution  shall  begin.  In  one  place  in  the 
Constitution  it  provides  that  the  term  of  office  of  the  first  Legisla- 
ture shall  commence  the  first  Tuesday  after  the  second  Monday  of 
January  following  their  election.  The  Constitution  provides  that 
they  shall  be  elected  at  the  first  general  election  under  the  provisions 
of  the  Constitution  which  will  be  in  November  1890.  Their  term 
of  office  will  commence  the  first  Tuesday  after  the  second  Monday  of 
January,  1891.  I  think  when  this  amendment  is  fully  understood 
by  the  members  of  the  Convention  they  will  see  the  force  of  it.  The 
gent'eman  who  framed  this  particular  ordinance  admitted  to  me 
that  it  was  not  right,  but  did  not  express  his  opinion. 

The  Chairman:  The  question  is  upon  the  amendment  offered 
to  the  amendment  of  the' gentleman  from  Bon  Homme.  Is  the 
Convention  ready  for  the  question  ': 

Mr.  Stroupe:  This  was  carefully  considered  and  finally  voted 
down  in  the  Committee. 

Mr.  Williams:  I  want  to  explain  tin-  intent  of  that  .•tnu-nd- 
ment.  This  amendment  provides  this:  That  the  officers  elected 
the  first  day  of  October  1SS9  will  continue  tq  hold  their  otlue;  their 


374  SOUTH  DAKOTA  DEBATES,  1889 

term  of  office  will  expire  the  first  of  January  1891,  when  those  rules 
will  hold  until  the  election  of  1890. 

The  Chairman:     The  question  is  upon  the  amendment. 

Mr.  Boucher:  With  all  due  deference  to  the  gentlemen  of  the 
Committee  I  believe  that  this  Schedule  had  ought  to  provide  that 
the  officers  elected  this  fall  ought  to  hold  until  the  general  election. 
The  Constitution  undoubtedly  intends  that  our  general  elections 
in  this  State  shall  be  bi-ennial.  In  fact  the  effect  of  adoption  of  the 
Schedule  as  it  now  stands  will  result  that  the  general  elections  will 
occur  every  year.  I  do  not  believe  it  would  be  radically  wrong; 
I  do  not  believe  it  would  be  contrary  to  the  spirit  of  the  Constitu- 
tion if  this  Schedule  should  provide  for  the  election  of  officers  that 
they  act  until  their  successors  are  elected  and  qualified  at  the  next 
general  election.  I  hope  the  amendment  will  be  adopted. 

Mr.  Hole:  To  explain  that  further  I  will  say  that  this  has  been 
before  the  Committee  and  argued  by  the  various  lawyers  and  sub- 
mitted, and  the  lawyers  reconsidered  it  in  Committee  and  they  have 
decided  it  was  not  best. 

We  tried  our  best  to  get  that  through  and  we  worked  to  get 
that  in  but  that  is  our  judgment  and  if  there  was  to  be  a  change  I 
would  not  want  it  to  be  at  my  recommendation.  I  am  satisfied  that 
we  do  not  wrant  it. 

Mr.  Willis:  I  am  sure  the  people  are  nearly  a  unit  in  this ;  that 
it  is  the  temper  and  sentiment  of  the  people  not  to  have  an  election 
every  year.  They  want  this  business  bi-ennial.  I  am  in  favor  of 
the  amendment. 

The  Chairman:  Is  the  Convention  ready  for  the  question? 
Tho.  e  in  avor  of  the  adoption  of  the  amendment  offered  by  the 
gentleman  from  Bon  Homme,  say  aye ;  those  opposed  say  no.  The 
noes  appear  to  have  it ;  the  noes  have  it  and  the  amendment  is  lost. 

Mr.  Humphrey:  I  move  that  the  section  be  amended  by 
striking  out  everything  after  the  words  "shall  be"  in  the  th  rd  line 
of  the  first  paragraph  and  inserting  instead  the  words  '  shall  be  as 
provided  in  the  Constitution." 

The  Chairman:     The  third  line  of  the  second  paragraph? 

Mr.  Humphrey:  The  section  will  then  read  "The  tenure  of 
all  officers,  whose  election  is  provided  for  in  this  Schedule,  on  the 
first  day  of  October,  A.  D.,  1889,  shall  be  provided  in  the  Con- 
stitution." 

The  Chairman:     That  is  substantially  the  same. 


SCHEDULE  375 


.Mr.  Humphrey:  I  do  not  so  understand  it.  I  shall  not  take 
the  time  to  tell  the  members  in  regard  to  overstepping  the  pro- 
visions of  the  Omnibus  Bill  in  discussing  the  question  with  regard 
to  the  powers  with  regard  to  Section  7.  In  my  judgment  th's  is 
overstepping  the  power  of  the  provision  of  the  Constitution ;  this 
is  overstepping  the  powers  of  the  Omnibus  Bill  and  it  defines  their 
terms  and  the  Constitution  provides  for  their  terms  ;  the  laws  provide 
for  the  terms  of  officers  we  now  have  and  we  have  no  power  to  change 
the  term  of  office.  I  am  not  in  favor  of  the  election  at  that  time 
anyway  ;  and  above  all  I  am  not  in  favor  of  infringing  upon  the  Con- 
stitution. I  am  in  favor  of  electing  the  officers  in  compliance  with 
this  Bill  and  in  accordance  with  the  Constitution. 

The  Chairman:  The  question  before  the  Convention  is  the 
adoption  of  the  remainder  of  the  report  of  the  Committee  on 
Schedule  and  Ordinance.  The  gentleman  from  Faulk  moves  to 
amend  Section  19  by  striking  out  all  after  the  words  "shall  be"  in 
the  third  line  of  the  first  paragraph  and  inserting  the  following: 
"Shall  be  as  provided  in  the  Constitution."  Those  favoring  the 
amendment  as  stated,  say  aye; those  of  the  opposite  opinion  say  no. 
The  noes  appear  to  have  it, — 

i Calls  of  "Rising  vote".) 

The  Chairman:  Those  of  the  opinion  that  the  amendment 
should  prevail  please  rise  and  stand  until  counted.  Those  opposed 
rise  and  stand  until  counted.  The  vote  stands  twenty  ayes,  noes, 
thirty.  The  amendment  to  the  amendment  is  lost.  The  question 
is  upon  the  adoption  of  the  motion  of  the  gentleman  from  Beadle, 
that  the  rest  of  the  report  before  the  Convention  be  adopted. 
Is  the  Convention  ready  for  the  question? 

Mr.  Sterling:-  I  move  as  a  substitute  that  this  report  be  post- 
poned until  next  Thursday.  1  simply  want  to  say  that  while  the 
Chairman  of  that  Committee  said  we  have  hail  that  report  before 
us  for  twelve  hours,  our  attention  has  been  called  in  that  time  to 
other  portions  of  the  report  and  there  are  other  important  matters 
I  would  like  to  look  over  and  have  time  for  the  consideration  of  these 
questions. 

The  report    provided  for  the  election  every  year.      It  seen 
me  quite  an   important  thing  to  be  considered      I  am  not  ready  to 
vote  upon  that  question. 

Judge   Edgerton:      I  would  ask  if  the  amendment    is  carried 


376  SOUTH  DAKOTA  DEBATES,  1889 

and  then  the  original  motion  is  carried  what  is  the  condition  of  the 
report  on  Schedule  ? 

The  Chairman:  The  report  would  be  this.  We  did  adopt  the 
amendment  offered  by  the  gentleman  from  Beadle.  Defeated  the 
motion  made  by  the  gentleman  from  Spink  to  postpone, — 

Judge  Edgerton:  The  point  of  order  I  make  is,  that  this  is 
not  a  proper  amendment.  It  is  a  part  of  the  substitute;  it  is  not 
a  proper  amendment.  One  motion  is  to  postpone  and  the  other  is 
to  adopt.  ' 

The  Chairman:  Mr.  Edgerton  makes  a  point  of  order  and  the 
amendment  is  ruled  out. 

Mr.  Hole:     I  offered  that  as  a  substitute. 

The  Chairman:  The  Chair  cannot  recognize  something  that 
is  entirely  different.  I  would  have  allowed  it  if  no  point  of  order 
had  been  raised.  The  motion  of  the  gentleman  from  Spink  is  now  in 
order.  The  question  is  upon  the  motion  of  the  gentleman  from 
Spink,  to  postpone  further  consideration  of  this  report  until  next 
Thursday.  Is  the  Convention  ready  for  the  question?  Those 
favoring  the  motion  as  stated  will  please  make  it  known  by  saying 
aye;  those  opposed  by  saying  no.  The  Chair  is  unable  to  decide. 
(Calls  of  "Division".) 

The  Chairman:  Those  favoring  the  motion  as  stated  will 
please  rise  and  stand  until  counted.  Those  opposed  will  please  rise 
and  stand  until  counted. 

The  Chairman:  Those  who  support  the  motion  are  thirty- 
three  and  those  who  oppose  it  are  twenty-one. 

The  motion  of  the  gentleman  from  Spink  is  carried. 

Mr.  Lee:     I  move  you  that  the  Convention  do  adjourn. 

Which  motion  prevailed. 


TWENTY-FOURTH  DAY. 

Hall  of  the  Constitutional  Convention,  July  27th,  1889,  Sioux  Falls 

Dakota. 

Convention  called  to  order  at  2  o'clock  P.  M. 

Dighton  Corson  in  the  chair. 

The  President:  The  Convention  will  come  to  order  and  Rev. 
Willis  will  lead  in  prayer. 

Prayer  by  Rev.  Willis:  Almighty  God,  we  recognize  Thy 
presence  in  all  the  affairs  and  interests  of  man's  life.  We  believe 
that  Thou  art  concerned  and  that  thine  eye  is  over  us  as  individuals 
and  communities  as  well  as  over  the  great  national  commonwealth. 
We  believe  that  Thou  art  interested  in  the  success  and  errors  of 
man,  that  Thou  art  directing  and  controlling  influences  that  are 
vital  to  our  future  welfare  and  life.  That  Thou  art  never  forgetful. 

Preside  Thou  over  the  deliberations  of  this  body  this  day  ;  leave 
the  imprints  of  Thy  hands  upon  the  completed  work  of  this  Con- 
vention. Guide  us  by  Thy  divine  wisdom,  always  and  keep  us 
through  our  Redeemer 

AMEX. 

The  President:     The  Clerk  will  read  a  communication. 
The  Clerk  reads  as  follows : 

Sioux  Falls,  July  27th,  '89. 
JUDGE  CORSON: — 

Will  you  please  preside  at  the  Convention  during  my  absence? 
Yours  truly, 

A.  J.  EDGERTON,  President. 

The  President:  The  reading  of  the  Journal  by  the  Clerk  will 
be  the  next  business  in  order. 

Mr.  Jolley:      I  thought  while  the  Clerk  was  reading  the  Journal 
that  it  did  not  state  the  time  that  we  adjourned  to  on  motion  ••!' 
Mr.  Van  Buskirk  in  the  morning;  it  should  be  tint  ill  two  M\  l«H-k. 
The  President:      Let  that  correction  U-  made. 


378  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Smith:  Among  the  signatures  to  the  Schedule  Committee 
is  printed  R.  S.  Smith.  It  should  be  R.  A.  Smith.  I  would  like 
to  have  it  corrected. 

Mr.  Young:  I  wish  to  ask  information  in  regard  to  those  pro- 
ceedings that  were  declared  out  of  order.  It  seems  to  me  that 
ought  to  appear  on  the  minutes  Those  amendments  that  were 
declared  out  of  order. 

Mr.  Jolley:  The  Journal  should  show  everything.  It  stands 
as  a  precedent  for  the  future. 

The  President  There  being  no  further  corrections  the  minutes 
will  stand  approved.  "What  is  the  further  pleasure  of  the  Con- 
vention ? 

Mr.  Kimball:     I  move  that  we  do  now  adjourn. 

The  President:  It  is  moved  that  the  Convention  do  now 
adjourn.  Those  favoring  this  motion  will  say  aye;  those  opposed 
will  say  no.  The  ayes  have  it ;  the  Convention  stands  adjourned. 


TWENTY-SIXTH   DAY. 

Hall  of  the  Constitutional  Convention,  Sioux  Falls,  Dakota,  July 

29th,  1889. 

Convention  called  to  order  at  2  o  clock  P.  M. 

Judge  Corson  presiding. 

The  President:  Rev.  Mr.  Huntley,  of  Jerauld  County,  will 
lead  us  in  prayer. 

Prayer  by  Rev.  Huntley:  O  God  our  Heavenly  Father,  \\c 
bless  and  adore  Thee  as  the  God  of  nations  and  as  the  God  of  each 
individual  heart  and  life. 

We  thank  Thee,  Our  God,  that  Thine  infinite  love  takes  hold 
upon  the  most  insignificant  preacher  in  the  universe.  That  Thou 
hast  revealed  to  us  a  loving  Father  ready  to  bless  Thy  children  with 
their  hearts'  desires  when  Thine  infinite  wisdom  commends  those 
desires.  We  pray  Father  today  for  wisdom  and  a  clear  discerning 
judgment  that  will  enable  us  in  Convention  hall  and  Committee 
room  to  do  good  work  acceptable  to  Thee  and  to  our  constituents. 
Bless  with  us,  our  fellow's  as  they  shall  go*  about  the  intricate,  im- 
portant business  of  the  Commission  in  North  Dakota.  Remember 
our  dear  ones  at  home;  may  they  be  kept  of  Thee  we  pray.  Guide 
us  through  the  remaining  days  of  this  Convention  and  at  last  save 
us  Thyself,  we  ask  in  Jesus'  name. 

AMEN. 

The  President:  The  Clerk  will  read  the  Journal  of  the  pre- 
ceding day. 

TWENTY-FOURTH  DAY. 

Sioux  Falls,  Dakota,  July  27,  '89. 
Two  o'clock  P,  M. 

Convention  called  to  order  by  Judge  Corson. 
Prayer  by  Rev.  Willis. 

The  Clerk  will  road  the-  following  communication  from  Prcsidi-m 
Edgerton: 

Sioux  Falls,  Dakota,  July  2wh.  1889. 
JUDGE  CORSOX:- 


380  SOUTH  DAKOTA  DEBATES,   1889 

Will    you    please    preside    over    the    Convention    during    my 
absence.  Yours  truly, 

A.  J.  EDGERTOX. 

Journal  read  and  approved. 

Moved  by  Mr.  Wheeler  that  we  now  adjourn. 

Carried. 

The  President:     There  being  no  corrections  to  the  minutes  as 
read  they  will  stand  approved. 

Mr.  Young:     Mr.  President,  I  move  you  that  we  do  now  adjourn. 

The  President :     Those  favoring  the  motion  that  the  Convention 
do  now  adjourn,  say  aye. 

Mr.   President:     The  Convention  stands  adjourned  until  to- 
r  orrow  at  two  o'clock. 


TWENTY-SEVENTH  DAY. 

Hall  of  the  Constitutional  Convention,  Sioux  Falls,  Dakota,  July 

30th,  1889. 

Convention  called  to  order  at  two  o'clock  P.  M. 

Dighton  Corson  presiding. 

The  President :     The  Convention  will  please  come  to  order. 

Mr.  Davies:     I  move  that  we  do  now  adjourn. 

This  motion  received  a  second  and  upon  being  put  to  a  vote 
was  carried  and  the  Convention  stands  adjourned. 


TWENTY-EIGHTH  DAY. 

Sioux  Falls,  July  31st,  1889. 

Hall  of  the  Constitutional  Convention,  two  o'clock  P.  M. 

Convention  called  to*order  by  President  Edgerton. 

Prayer  by  Rev.  Willis. 

Our  Father  in  Heaven,  we  recognize  that  Thou  art  an  infinite 
God  and  our'Father;  that  Thou  art  present  in  all  the  deliberations 
of  this  body  and  are  cognizant  of  all  our  actions.  Help  us  to  realize 
that  most  important  truth  to  ourselves  that  we  may  adopt  the  true 
legitimate  ends  of  right  and  choose  the  higher  motives  of  life. 

May  our  lives  redound  to  Thy  glory  we  ask  for  the  Redeemer's 
sake. 

•     AMEN. 

The  President :     The  Clerk  will  read  the  Journal  of  the  Twenty- 
sixth  and  Twenty-seventh  days. 
The  Clerk  reads: 

TWENTY-SIXTH  DAY. 

Sioux  Falls,  Dakota,  July  29th,  1889. 
Two  o'clock  P.  M. 

Convention  called  to  order  by  Judge  Cors on. 
Moved  by  Mr.  Young  to  adjourn. 
Carried. 

TWENTY-SEVENTH  DAY 

Sioux  Falls,  Dakota,  July  30,  '89 

Two  o'clock  P.  M. 

Convention  called  to  order  by  Judge  Corsun. 

Moved  by  Mr.  Davies  to  adjourn. 

Carried. 

The  President:  The  Journal  will  stand  approved  unless  thr 
Chair  hears  ob  cvtions.  The-  Chair  hears  none  and  the  Journal  is 
approved. 


384  SOUTH  DAKOTA  DEBATES,  1889 

A  communication  was  read  from  the  Commander  of  the  G.  A. 
R.  in  reference  to  the  name  of  the  new  state, 

The  President:  It  will  be  referred  to  the  Committee  on  Name, 
Boundaries  and  Seat  of  Government. 

Mr.  Van  Buskirk:  At  the  request  of  Judge  Corson  I  present 
the  report  of  the  Committee  on  Arrangement  and  Phraseology  as 
follows: 

Sioux  Falls,  July  31,  1889. 
MR.  PRESIDENT:  — 

Your  Committee  on  Arrangement  and  Phraseology  to  whom 
was  referred  the  Preamble  to  the  Constitution  having  had  the  same 
under  careful  consideration,  beg  leave  to  submit  the  following 
report  in  relation  thereto,  in  which  report  there  are  no  changes 
except  the  word  "South"  is  inserted  before  the  word  "Dakota"  in 
the  first  line  and  the  word  "South"  before  the  word  "Dakota"  in 
the  last  line  of  said  Preamble  and  that  the  changes  arc  in  conformity 
with  the  Constitution  and  the  Omnibus  Enabling  Act,  and  herewith 
report  the  Preamble  with  said  changes  incorporated  therein  and 
respectfully  recommend  the  adoption  of  the  changes  nd  the  re- 
submission  of  the  Preamble  as  amended. 

Preamble. 

We,  the  people  of  South  Dakota,  grateful  to  Almighty  God  for 
our  civil  and  religious  liberties,  in  order  to  form  a  more  perfect  and 
independent  government,  establish  justice,  insure  tranquility,  pro- 
vide for  the  common  defense,  promote  the  general  welfare  and 
preserve  to  ourselves  and  to  our  posterity  the  blessings  of  liberty 
do  ordain  and  establish  this  Constitution  for  the  State  of  South 
Dakota. 

D.  CORSON, 
Chairman  of  Committee. 

The  President:  Mr.  Van  Buskirk  moves  the  adoption  of  the 
report  of  the  Committee  Those  favoring  the  adoption  of  the  re- 
port of  the  Committee  as  read,  will  please  say  aye ;  those  opposed 
will  say  no.  The  ayes  have  it ;  the  report  is  adopted. 

The  Chairman  of  the  Committee  on  Arrangement  and  Phrase- 
ology submitted  the  following  report. 

Sioux  Falls,  July  31,  1889. 
MR.  PRESIDENT:  — 

Your  Committee  on  Arrangement  and  Phraseology  to  whom 
was  referred  Article  II  of  the  Constitution,  having  had  the  same 
under  careful  consideration,  beg  leave  to  submit  the  following 
report  relative  thereto,  and  in  which  report  there  are  no  changes  of 
the  Constitution,  and  that  said  Article  is  in  conformity  to  the  pro- 


THE  PHRASEOLOGY  385 


visions   of  the   Enabling  Act ;  and  respectfully  recommend  the 
adoption  of  the  report  and  the  resubmission  of  the  Article. 

ARTICLE  II. 

DIVISION  OF  THE  POWERS  OF  GOVERNMENT. 

The  powers  of  government  of  the  State  are  divided  into  three 
distinct  departments — the  Legislative,  Executive  and  Judicial  — 

and  the  powers  and  duties  of  each  are  prescribed  by  this  Consti- 
tution. 

D.  CORSON.  Chmn. 

Mr.  Van  Buskirk:  I  move  the  adoption  of  the  report  of  the 
Committee. 

The  President:  Mr.  Van  Buskirk  moves  the  a'doption  of  this 
report  of  the  Committee.  All  those  favoring  this  motion  will  please 
make  it  known  by  saying  aye.  Opposed,  if  any,  by  saying  no.  The 
ayes  appear  to  have  it ;  the  ayes  have  it  and  the  report  is  adopted. 

Mr.  Willis:     I  move  that  we  do  now  adjourn. 

Mr.  Parker:  Before  the  motion  is  put  I  would  like  to  ask  con- 
sent to  sign  the  report  of  the  Committee  on  Apportionment  and 
Schedule.  I  met  with  the  Committee  in  all  their  deliberations 
except  when  I  was  necessarily  called  away  last  Wednesday  and  as 
the  matter  now  stands  it  might  appear  a  dereliction  of  duty  on  im- 
part, I  would  like  permission  to  sign  the  report. 

The  President:  The  report  is  not  signed  by  the  balance  of  the 
Committee; 

Mr.  Parker:  I  would  like  permission  to  sign  these  reports  at 
this  time. 

The  President:  If  there  is  no  objection,  leave  will  be  granted. 
The  chair  hears  no  objections. 

The  motion  to  adjourn  being  put  was  carried  and  the  Convention 
was  divhnvd  adjourned  until  tomorrow  'at  two  o'clock. 


TWENTY-NINTH  DAY. 

Hall  of  the  Constitutional  Convention,  Sioux  Falls,  Dakota,  August 

Ifct,  1889. 

Two  o'clock  P.  M. 

Convention  called  to  order  by  President  Edgerton. 

Prayer  by  Chief  Clerk,  Mr.  Burdick: 

Our  Father  in  Heaven,  we  thank  Thee  for  thy  preserving  care. 
We  thank  Thee  for  health,  life  and  happiness  that  are  ours.  Grant 
that  today  we  may  do  that  that  shall  be  pleasing  in  Thy  sight  and 
the  business  that  shall  be  transacted  by  this  Con-vention  today,  may 
it  meet  with  Divine  approval.  Grant  that  whatsoever  be  done,  may 
be  done  with  an  eye  to  the  best  interests  of  the  people.  Bless  us 
all  for  Christ  Jesus'  sake. 

AMEX. 

The  President:  The  reading  of  the  Journal  will  be  next  in 
order. 

The  Clerk,  at  this  point,  reads  the  Journal. 

The  President:     Col.  Jolley,  has  the  Journal  been  approval? 

Mr.Jolley:     Yes,  Sir. 

Mr.  Jolley:  I  move  that  the  Convention  do  now  take  a 
until  eight  o'clock  this  evening.  There  are  two  reasons  for  making 
the  motion  The  first,  the  Joint  Commission  will  be  here  at  that 
time.  The  further  reason  that  when  we  adjourned  Friday  night 
there  was  an  agreement  made  between  the  Committee  on  Schedule 
and  Mr.  Sterling,  to  move  that  the  rest  of  the  report  be  taken  up 
today.  I  move  that  we  take  a  rec  c:  s  until  eight  o'clock  this  evening. 

The  President:      1  Colonel  that  we  dispose  of  the  fe\v 

very  short  matters  first. 

Mr.  Jolley:      I  withdraw  the  motion,  with  the  foment   of  my 

nd. 

Mr.   Davit--:      I    move   the    President    appoint    a   Committee   of 


388  SOUTH  DAKOTA  DEBATES,  1889 

five  to  secure  the  publication  of  the  Constitution  and  Schedule  as 
ordered  by  the  Convention. 

Which  motion  received  a  second. 

The  President:  As  many  as  are  of  the  opinion  that  the  reso- 
lution be  adopted,  say  aye.  The  ayes  appear  to  have  it.  The  ayes 
have  it. 

A  communication  relative  to  artesian  wells  was  read  by  the 
Clerk,  signed  by  John  J.  Gushing. 

The  President:  The  communication  will  be  referred  to  the 
Committee  on  Judiciary. 

A  communication  was  read  from  John  J.  Gushing,  of  Rapid 
City,  S.  D.,  under  date  of  July  27th,  relative  to  name,  of  the  pro- 
posed new  state,  signed  by  J.  M.  Simmons. 

The  President:  Referred  to  the  Committee  on  Name,  Bound- 
ary. 

Mr.  Jolley:  I  renew  my  motion  to  take  a  recess  until  eight 
o'clock  this  evening. 

The  President:.  The  motion  wras  made  and  duly  seconded  that 
the  Convention  do  now  take  a  recess  until  eight  o'clock  this  evening. 
Those  favoring  this  motion  please  make  it  known  by  saying  aye, 
those  opposed  say  no.  The  ayes  appear  to  have  it ;  the  ayes  have  it 
and  the  Convention  stands  adjourned  until  eight  o'clock  this 
evening. 
Hall  of  the  Constitutional  Convention,  Sioux  Falls,  Dakota,  August 

1st,  1889. 

Eight  o'clock  P.  M. 

The  President:     The  Convention  will  come  to  order. 

Mr.  Edgerton:  (of  Yankton):  Mr.  President,  I  have  a  reso- 
lution I  wish  to  offer  and  move  its  adoption. 

WHEREAS:  Honorable  Benjaman  Harrison  for  years  has  been 
the  earnest  friend  of  Dakota  and  the  advocate  of  Home  Rule  in 
America  as  well  as  abroad,  and 

WHEREAS,  He  has  contributed  largely  to  the  division  of  Da- 
kota and  the  early  admission  of  four  great  Territories  into  the 
Union  of  States,  therefore  be  it 

RESOLVED,  By  the  delegates  of  South  Dakota  in  Constitutional 
Convention  assembled,  that  the  thanks  of  all  sincere  and  patriotic 
friends  of  republican  government,  and  especially  those  residing  in 
the  Territories,  are  due  to  him  for  the  consistent  arid  unwavering 
stand  he  has  maintained  in  favor  of  those  principles  for  the  ad- 
mission of  new  States  taught  by  the  founders' of  the  Republic. 


COMPLIMENTS  TO  HARRISON.  389 

RESOLVED,  That  a  copy  of  these  resolutions  be  transmitted 
by  our  presiding  officer  to  the  Hon.  Benjaman  Harrison,  President 
of  the  United  States. 

The  President:  Gentlemen,  you  have  heard  the  resolution 
offered  by  the  gen  eman  from  Yankton.  Is  the  Convention  ready 
for  action?  Those  favoring  the  resolution  as  read,  will  make  it 
known  by  saying  aye ;  those  opposed  by  saying  no.  The  ayes  ap- 
pear to  have  it ;  the  ayes  have  it ;  the  resolution  is  adopted  .  What 
is  the  further  pleasure  of  the  Convention. 

Mr.  Wescott:  I  move  that  when  we  adjourn  tonight  it  be 
until  tomorrow  morning  at  nine  o'clock. 

Which  motion  received  a  second. 

The  President:  Those  favoring  the  motion  that  when  the 
Convention  adjourn,  it  adjourn  to  meet  tomorrow  morning  at  nine 
o'clock,  say  aye;  those  opposed  say  no.  The  ayes  have  it  and  the 
motion  prevails. 

The  President:  I  will  announce  the  Commmittee  on  Printing 
the  Constitution  in  pursuance  to  the  resolution  passed  this  afternoon. 
Mr.  Davies,  of  Edmunds;  Mr.  Stroupe,  of  Brown;  Mr.  Zitka,  of 
BonHomme  ;  Mr.  Edgerton,  of  Yankton ;  Mr.  Ringsrud,  of  Union. 

Mr.  President:  Unless  otherwise  ordered  the  consideration 
of  the  report  of  the  Committee  on  Ordinance  and  Schedule,  will  be 
resumed.  If  I  remember  rightly,  I  may  be  mistaken,  if  I  remember 
rightly  the  motion  of  Mr.  Hole,  the  Chairman  of  the  Committee  was 
that  the  balance  of  the  report  be  adopted. 

Mr.  Jolley:     That  motion  was  ruled  out  of  order. 

Mr.  Hole:  I  think  we  adjourned  with  that  motion  before  the 
House.  I  would  ask  now  to  withdraw  the  motion  and  that  wo  re- 
consider the  balance  of  the  report  section  by  section  instead  of  as 
a  whole.  I  would  now  move,  that  section  8  be  adopted. 

The  President:     The  Clerk  will  read  Section  8. 

The  Clerk  reads  as  follows:  Sec.  8.  Immediately  after  the 
election  herein  provided  for,  the  judges  of  election  at  each  polling 
place,  shall  make  a  true  and  complete  count  of  all  the  votes  duly 
east  at  such  election,  and  shall  certify  and  return  the  result  of  the 
same  with  the  names  of  all  candidates,  and  the  number  of  v<  >t  - 
for  each  candidate  and  the  number  of  votes  cast  for  and  against  the 
Constitution,  and  the  number  of  votes  cast  for  and  against  Pro- 
hibition, and  the  number  of  voles  cast  for  and  against  Minority 
representation,  and  the  number  of  votes  cast  for  eaeh  city,  town  or 


390  SOUTH  DAKOTA  DEBATES,  1889 

place,  for  the  temporary  seat  of  government,  to  the  County  Clerk 
or  Auditor  of  their  respective  counties,  together  with  one  of  the 
poll  lists  and  election  books  used  in  said  election." 

The  President:  Gentlemen,  the  question  is  upon  the  adoption 
of  Section  8  as  read.  Those  favoring  the  adoption  of  Section  8 
make  it  known  by  saying  aye;  opposed,  if  any,  by  saying  no  The 
ayes  appear  to  have  it ;  the  ayes  have  it  and  Section  8  is  adopted. 

Mr.  Hole:     I  move  that  Section  9  be  adopted. 

The  President:  The  Chairman  of  the  Committee  moves  that 
Section  9  be  adopted.  The  Clerk  will  read. 

The  Clerk  reads  Section  9  as  follows:  "Within  five  days  after 
the  said  election  trie  several  boards  of  county  canvassers  provided 
by  law  for  the  canvassing  of  the  results  of  the  election  shall  make 
and  certify  to  the  Secretary  of  the' Territory  of  Dakota,  the  true 
and  correct  return  of  the  total  number  of  votes  cast  for  the  Consti- 
tution, and  against  the  Constitution,  of  the  number  of  votes  cast 
for  and  against  Prohibition,  and  the  number  of  votes  cast  for  and 
against  Minority  Representation,  and  the  number  of  votes  cast  for 
each  city,  town  or  place  as  the  temporary  seat  of  government,  and 
the  number  of  votes  cast  for  each  person  voted  for  at  such  election, 
except  county  officers  and  members  of  the  Legislature  and  shall 
transmit  the  same  to  the  Secretary  of  the  Territory  of  Dakota,  by 
mail,  and  shall  file  with  the  County  Clerk  or  Auditor  of  each  of  said 
counties  a  duplicate  and  certified  copy  of  said  returns. 

Said  Board  of  County  Canvassers  shall  issue  certificates  of 
election  to  the  persons  who  shall  have  received  the  highest  number 
of  votes  cast  for  the  respective  officers  of  judge  of  the  county  court, 
and  representatives  in  the  Legislature  and  for  State  Senator  or  Sen- 
ators. 

The  President:  The  question  before  the  Convention  is  the 
adoption  of  Section  9  as  read  in  your  hearing.  Those  favoring  this 
motion  make  it  known  by  saying  aye;  those  opposed,  if  any,  by 
saying  no.  The  ayes  appear  to  have  it ;  the  ayes  have  it  and  the 
motion  prevails.  Section  9  is  adopted. 

Mr.  Hole:     The  same  motion  as  to  Section  10. 

The  President:     The  Clerk  will  read. 

The  Clerk:  "Sec.  10.  When  two  or  more  counties  are  con- 
nected in  one  senatorial  or  representative  district,  it  shall  be  the 
duty  of  the  Clerks  and  Auditors  of  the  respective  counties  to  attend 
at  the  office  of  the  County  Clerk  of  the  senior  countv  in  date  of  or- 


ELECTION  RETURNS  391 


ganization,  within  twenty  days  after  date  of  election  and  they  shall 
compare  the  votes  given  in  the  several  counties  comprising  such 
Senatorial  and  Representative  district  and  such  Clerks  and  Auditors 
shall  immediately  make  out  a  certificate  of  election  to  the  person 
having  the  highest  number  of  votes  in  such  district  for  State  Senator 
or  Representative  or  both,  which  certificate  shall  be  delivered  to 
the  person  entitled  thereto  on  his  application  to  the  Clerk  of  the 
senior  county  or  such  district. 

The  President:  The  question  recurs  upon  the  adoption  of 
Sestion  10  as  read.  Those  voting  in  the  affirmative  will  say  aye; 
those  voting  in  the  negative  will  say  no;  the  ayes  have  it,  Section 
10  is  adopted 

Mr.  Hole:     I  make  the  same  motion  as  to  Section  11. 

The  President:     The  Clerk  will  read  Section  11. 

The  Clerk:  SEC.  11.  The  Secretary  of  the  Territory  shall 
receive  all  returns  of  election  transmitted  to  him  as  provided,  and 
shall  preserve  the  same,  and  after  they  have  been  canvassed  as  here- 
inafter provided,  and  after  the  admission  of  the  State  of  South 
Dakota  into  the  Union,  he  shall  deliver  said  returns  to  the  proper 
State  officers  of  said  State  of  South  Dakota. 

Within  fifteen  days  after  said  election,  the  Secretary  of  the 
Territory,  with  the  Governor,  and  Chief  Justice  thereof  or  any  two 
of  them,  shall  canvass  such  returns,  and  certify  the  same  to  the, 
President  of  the  United  States  as  provided  in  the  Enabling  Act. 

They  shall  also  ascertain  the  total  number  of  votes  cast  at 
such  election  for  the  Constitution  and  against  the  Constitution ; 
the  total  number  of  votes  cast  for  and  against  prohibition,  and  the 
total  number  of  votes  cast  for  and  against  Minority  Representation; 
and  the  total  number  of  votes  cast  for  each  city,  town  or  place  as 
the  temporary  seal  of  government";  and  the  total  number  of  votes 
cast  for  each  person  voted  for,  for  any  office  at  said  election,  ex- 
cepting County  Judge  and  members  of  the  Legislature,  and  shall 
declare  the  result  of  said  elc<  lion  in  conformity  with  such  vote,  and 
the  Governor  of  the  Territory  shall  thereupon  issue'  a  proclamation 
at  once  thereof. 

They  shall  also  make  and  transmit  to  the  State  Legislature,  im- 
mediately upon  its  organization  a  list  of  all  of  the  State  and  Judicial 
officers  who  shall  thus  be  ascertained  to  be  duly  elected. 

The  various  County  and  District  Canvassing  Boards  shall  make 
and  transmit  to  the  Secretary  <>!'  the  Territory,  the  names  of  all  per- 
sons declared  by  them  to  be  elected  members  of  the  Senate  and 
House  at  Representatives  <>i  the  State  of  South  Dakota;    lie  shall 
make  separate  lists  of  the  Senators,  and  Representatives  so  « 
which  lists  shall  constitute  the  rolls  under  whieh  the  Senate  and 
House  of  Representatives  shall  be  organized. 


392  SOUTH  DAKOTA  DEBATES,  1889 

The  Governor  of  the  Territory  shall  make  and  issue  certificates 
of  election  to  the  persons  who  are  shown  by  the  canvass  to  have  re- 
ceived the  highest  number  of  votes  for  Governor,  Lieutenant  Gov- 
ernor, Secretary  of  State,  Auditor,  Treasurer,  Attorney  Genera 
Superintendent  of  Public  Instruction,  Commissioner  of  School  and 
Public  Lands,  and  Judges  of  the  Supreme  and  Circuit  Courts. 
Such  certificates  to  be  attested  by  the  Secretary  of  the  Territory, 

The  President:  The  question  is  upon  the  adoption  of  Section 
11.  Those  favoring  the  adoption  of  this  section  as  read,  make  it 
known  by  the  usual  sign ;  those  opposed,  by  saying  no.  The  ayes 
appear  to  have  it.  The  ayes  have  it,  Section  11  is  adopted. 

Mr.  Hole:     I  move  you  that  Section  12  be  adopted. 

The  Clerk:  "Sec.  12.  The  apportionment  made  in  this  Con- 
stitution shall  govern  the  election  above  provided  for,  for  members 
of  the  State  Legislature  until  otherwise  provided  by  law. 

At  the  first  election  held  under  this  ordinance  for  Senators  and 
Representatives  of  the  Legislature  there  shall  be  elected  forty-five 
Senators  and  one  hundred  and  twenty-four  Representatives  in  the 
State  Legislature  respectively." 

The  President:  It  is  moved  that  Section  12  be  adopted. 
Those  voting  in  the  affirmative  will  say  aye,  those  voting  in  the 
negative  will  say  no.  The  ayes  have  it.  Section  12  is  adopted. 

Mr.  Hole:     I  move  that  Section  13  be  adopted. 

The  President:     The  Clerk  will  read. 

The  Clerk:  "Sec.  13.  The  Legislature  elected  under  the  pro- 
visions of  this  ordinance  and  the  Constitution  shall  assemble  at  the 
temporary  seat  of  government  on  the  3rd  Tuesday  in  October,  in 
the  year  A.  D.,  1889,  at  12  o'clock  noon,  and  on  the  first  day  of 
their  assemblage  the  Governor  and  other  State  officers  shall  take 
the  oath  of  office  in  the  presence  of  the  Legislature.  The  oath  of 
office  shall  be  administered  to  the  members  of  the  Legislature,  and 
to  the  State  officers  by  the  Chief  Justice  of  the  Territory,  or  by  any 
other  officer  duly  authorized  by  the  laws  of  the  Territory  of  Dakota 
to  administer  oaths." 

The  President:  The  Convention  is  now  about  to  vote  upon 
the  adoption  or  rejection  of  Section  13.  Those  favoring  the  motion 
say  aye;  those  favoring  or  voting  in  the  negative  say  no.  The  ayes 
appear  to  have  it ;  the  ayes  have  it.  Section  13  is  adopted. 

Mr.  Hole:     The  same  motion  as  to  Section  14. 

The  Clerk:  "Sec.  14.  Immediately  after  the  organization  of 
the  Legislature  and  taking  the  oath  of  office  by  the  State  officers, 


ELECTION  OF  SENATORS  393 


the  Legislature  shall  then  and  there  proceed  to  the  election  of  two 
Senators  of  the  United  States  for  the  State  of  South  Dakota,  in 
the  mode  and  manner  provided  by  the  laws  of  Congress  for  the 
election  of  the  United  States  Senators.  And  the  Governor  and 
Secretary  of  State  of  South  Dakota  shall  certify  the  election  of  the 
said  Senators,  and  two  Representatives  in  Congress  in  the  manner 
required  by  law." 

The  President:  The  question  recurs  upon  the  adoption  of 
Section  14  of  the  report  of  the  Committee  on  Schedule  and  Ordi- 
nance. Those  favoring  this  motion  will  make  it  known  in  the  usual 
manner.  Those  opposed,  in  the  same  wray.  The  ayes  appear  to 
have  it ;  the  ayes  have  it.  Section  14  is  duly  adopted. 

Mr.  Hole:     I  move  that  Sections  15  and  16  be  adopted. 

The  Clerk:  SCCTION  15.  Immediately  after  the  election  of 
the  United  States  Senators  as  above  provided  for,  said  Legislature 
shall  adjourn  to  meet  at  the  temporary  seat  of  government  on  the 
first  Tuesday  after  the  first  Monday  of  January,  1890,  at  12  o'clock 
M. 

Provided,  however,  that  if  the  State  of  South  Dakota  has  not 
been  admitted  by  proclamation  or  otherwise  at  said  date,  then 
said  Legislature  shall  convene  within  ten  days  after  the  date;  of  ad- 
mission of  the  State  into  the  Union. 

SEC.  16.  Nothing  in  this  Constitution  or  Schedule  contained 
shall  be  construed  to  authorize  the  Legislature  to  exercise  any 
powers  except  such  as  are  necessary  to  its  first  organization,  and 
to  elect  United  States  Senators,  and  to  adjourn  as  above  provided. 

Nor  to  authorize  an  officer  of  the  Executive,  Administrative  or 
Judiciary  Departments,  to  exercise  any  duties  of  his  office  until 
the  State  of  South  Dakota  shall  have  been  regularly  admitted  into 
the  Union  excepting  such  as  may  be  authorized  by  the  Congress  of 
the  United  States. 

The  President:  Gentlemen,  the  motion  before  you  now  of  the 
gentleman  from  Beadle,  is  .upon  the  adoption  of  Sections  15  and 
16  of  the  report  under  consideration.  Are  you  ready  for  the  ques- 
tion? Those  supporting  the  motion  will  make  it  known  byi  ay  ing  no. 
The  motion  prevails.  Sections  15  and  16  are  adopted. 

Judge  Corson:  I  desire  tin-  ^entleman  to  withdraw  17.  1  may 
be  mistaken. 

Mr.  Hole:      I  move  that  Section   17  be  adopted 

The  Clerk     -Sec.    17.      "Tin-  ordinances  and   Schedule  enacted 
by   this  Convention  .-hull  be  held   to  l>e   vaild   for  all   the    pur: 
thereof." 


394  SOUTH  DAKOTA  DEBATES,  1889 

The  President  Those  favoring  the  adoption  of  Section  17 
will  vote  aye ;  those  opposed  will  say  no.  The  ayes  appear  to  have 
it ;  the  ayes  have  it.  Section  17  is  adopted. 

Judge  Corson:  I  move  to  add  after  the  4th  subdivision  of 
Section  18  a  subdivision  numbered  "5"  which  is  as  follows:  "Fifth. 
That  jurisdiction  is  ceded  to  the  United  States  over  the  military  res- 
ervations of  Ft.  Meade,  Ft.  Randall,  and  Fort  Sully,  heretofore 
declared  by  the  President  of  the  United  States;  provided  legal  pro- 
cess, civil  and  criminal,  of  this  State  shall  extend  over  such  reser- 
vations in  all  cases  of  which  exclusive  jurisdiction  is  not  vested  in 
the  United  States,  or  of  crimes  not  committed  within  the  limits  of 
such  reservations."  I  will  in  this  connection  ask  the  Clerk  to  read 
a  letter  of  the  Commanding  General  of  this  Department. 

The  Clerk  reads: 

Headquarters  Dept.  of  Dak,  St.  Paul,  Minn.,  July  25th  1889. 
To  THE  PRESIDING  OFFICER  OF  THE  CONSTITUTIONAL  CONVENTION 

OF  SOUTH  DAKOTA: 
SIR:  — 

I  have  the  honor,  in  accordance  with  instructions  received  from 
the  War  Department  to  request  that  consideration  of  the  Con- 
vention be  invited  to  the  proposition  that  a  clause  be  inserted  in 
the  Constitution  of  the  State  of  South  Dakota,  by  which  jurisdiction 
shall  be  reserved  to  the  United  States,  as  provid'ed  in  Section  Eight 
of  Article  One  of  the  Constitution,  over  the  military  reservations 
of  Forts  Meade,  Randall  and  Sully,  heretofore  declared  by  the 
President. 

Very  respectfully  your  obedient  servant. 

THOS.  H.  RUGER, 
Brigadier-General  Commanding. 

Mr.  Corson:  I  will  state  that  this  letter  came  to  us  through 
the  hands  of  Lieutenant  Fowler,  one  of  the  staff.  It  seems  that  the 
object  is  to  prevent  conflict  of  jurisdiction  between  the  State  au- 
thorities and  the  United  States  authorities  over  these  reservations ; 
a  matter  that  has  given  the  United  States  some  trouble  in  certain 
localities;  and  they  desire  to  avoid  it  here.  I  suppose  there  will 
be  no  objection  to  conceding  this  jurisdiction,  as  it  is  generally 
done  in  all  cases  where  it  is  requested.  This  is  an  oversight.  It 
is  usual  in  enabling  acts  to  provide  for  this,  but  through  some  over- 
sight it  was  neglected  in  ours.  Hence,  the  Department  has  deemed 
it  of  sufficient  importance  to  engraft  it  in  our  Constitution.  I  will 
therefore  move  that  the  amendment  be  adopted. 

Which  motion  received  a  second. 


COMPACT  WITH  THE  UNITED  STATES  395 

Mr.  Jollcy:  I  will  call  attention,  gentlemen,  to  this  fact,  this 
Section  18 — and  the  reason  why  it  was  put  in  this  Schedule  is  this: 
That  the  Enabling  Act  said,  that  we  should  by  ordinance  make  such 
a  provision  as  this  and  in  order  to  comply  with  the  Enabling  Act 
this  was  put  in  the  Schedule  by  the  Committee.  There  is  also,  I  will 
inform  the  gentleman  further  always  just  such  a  provision  in  a 
Constitution  under  the  head  of  Compact  with  the  United  States ; 
I  think  that  it  would  have  very  little  force  in  this  Schedule.  The 
amendment  offered  by  the  gentleman  from  Lawrence  may  be  regu- 
lar, but  I  think  the  better  course  would  be  to  make  the  compact 
with  the  United  States  in  the  Constitution  and  add  it  there,  and  in 
so  doing  add  it  in  both  places. 

Mr.  Corson:  I  hardly  think  that  would  be  necersary,  one  con- 
pact  has  been  adop  ed  and  enrolled  and  it  would  make  considerable 
changes  now  to  incorporate  it  in  that  provision.  1  believe  it  might 
be  satisfactory  to  place  it  as  contemplated  in  this  amendment.  I 
do  not  th'nk  there  can  be  any  objection. 

Mr.  Hole:     I  would  like  to  hear  the  amendment  read  again. 

The  Clerk  reads  the  amendment  as  desired. 

The  President:  Those  <  f  the  opinion  that  the  amendment 
should  be  adopted  say  aye ;  those  opposed  say  no.  The  ayes  have  it 
The  question  now  recurs  on  the  adoption  of  Section  18  as  amended. 
The  Clerk  will  read  Section  18  with  the  amendment. 

The  Clerk:  SEC.  18.  That  we,  the  people  of  the  State  of 
South  Dakota,  do  ordain: 

First:  That  perfect  toleration  of  religious  sentiment  shall  be 
secured,  and  that  no  inhabitant  of  this  State  shall  ever  be  molested 
in  person  or  property  on  acocunt  of  his  or  her  mode  of  religious 
worship. 

Second:  That  we,<  the  people  inhabiting  the  State  of  South 
Dakota  do  agree  and  declare,  that  we  forever  disclaim  all  right  and 
title  to  the  unappropriated  public  lands  lying  within  the  boundaries 
of  South  Dakota;  and  to  all  lands  lying  within  said  limits  owned 
or  held  by  any  Indian  or  Indian  tribes,  and  that  until  the  title 
thereto  shall  have  been  extinguished  by  the  United  States,  the  same 
shall  be  and  remain  subject  to  the  disposition  of  the  United  S 
and  said  Indian  lands  shall  remain  under  the  absolute  jurisdiction 
and  control  of  the  Congress  of  the  United  States. 

That  the  lands  belonging  to  the  c  itixens  of  the  Unite. 1  St.. 
siding  without  the  said  State  -hall  never  be  taxed  at  a  higher  rate 
than  the  lands  belonging  to  residents  of  this  State.      That  n. 
shall  be  imposed  by  the  State  of  South  Dakota  on  lands  or  property 
therein  belonging  to  or  which  may  hereafter  be  pun  ha.-e<l  by  the 


396  SOUTH  DAKOTA  DEBATES,   1889 

United  States,  or  reserved  for  its  use.  But  nothing  herein  shall 
preclude  the  State  of  South  Dakota  from  taxing  as  other  lands  are 
taxed  any  lands,  owned  or  held  by  any  Indian  who  has  severed  his 
tribal  relation  and  has  obtained  from  the  United  States,  or  from 
any  person  a  title  thereto  by  patent  or  other  grant  save  and  except 
such  lands  as  have  been,  or  may  be  granted  to  any  Indian  or  Indians 
under  any  act  of  Congress  containing  a  provision  exempting  the 
lands  thus  granted  from  taxation,  all  such  lands  which  may  have 
been  exempted' by  any  grant  or  law  of  the  United  States  shall  re- 
main exempt  to  the  extent,  and  as  prescribed  by  such  Act  of  Con- 
gress. 

Third:  That  the  State  of  South  Dakota  shall  assume  and  pay 
that  portion  of  the  debts  and  liabilities  of  the  Territory  of  Dakota 
as  provided  for  in  this  Constitution. 

Fourth:  That  provision  shall  be  made  for  the  establishment 
and  maintenance  of  systems  of  public  schools  which  shall  be  open 
to  all  the  children  of  the  State  and  free  from  sectarian  control. 

Fifth:  That  jurisdiction  is  ceded  to  the  United  States  over 
the  military  reservations  of  Fort  Meade,  Fort  Randall  and  Fort 
Sully  heretofore  declared  by  the  President  of  the  United  States; 
provided  legal  process,  civil  and  criminal,  of  this  State  shall  extend 
over  such  reservations  in  all  cases  of  which  exclusive  jurisdiction 
is  not  vested  in  the  United  States,  or  of  crimes  not  committed 
within  the  limits  of  such  reservations. 

These  ordinances  shall  be  irrevocable  without  the  consent  of 
the  United  States  and  also  the  people  of  said  State  of  South  Dakota, 
expressed  by  their  Legislative  assembly. 

The  President:  Is  the  Convention  now  ready?  Those  favor- 
ing the  adoption  of  the  mot 'on  of  the  gentleman  from  Lawrence  will 
say  aye;  and  those  opposed  will  say  no..  The  ayes  have  it.  Sec- 
tion 18  as  amended,  is  adopted. 

Mr.  Hole:     I  move  that  Section  19  be  adopted. 

The  Clerk:  SEC.  10.  The  tenure  of  all  offices,  whose  election 
is  provided  for  in  this  Schedule  on  the  first  day  of  October,  A.  D., 
1889,  shall  be  as  follows. 

The  Governor,  Lieutenant  Governor,  Secretary  of  State, 
Auditor,  Treasurer,  Attorney  General,  Superintendent  of  Public 
Instruction  Commissioner  of  School  and  Public  Lands,  Judges  of 
County  Courts,  shall  hold  their  respective  offices  until  the  first 
Tuesday  after  the  first  Monday  in  January,  A.  D.,  1892,  at  twelve 
o'clock  M.  and  until  their  successors  are  elected  and  qualified. 

The  Judges  of  the  Supreme  Courts  and  Circuit  Courts  shall 
hold  their  offices  until  the  first  Tuesday  after  the  first  Monday  in 
January,  A.  D.,  1894,  at  12  o'clock  M.  and  until  their  successors 
are  elected  and  qualified,  subject  to  the  provisions  of  Section  26 
of  Article  V  of  the  Constitution. 

The  terms  of  office  of  the  members  of  the  Legislature   elected 


TENURE  OF  OFFICE  AGAIN-  397 

: ^* — . . 

at  the  first  election  held  under  the  provisions  of  this  Constitution, 
shall  expire  on  the  first  Tuesday  after  the  first  Monday  in  January, 
one  thousand  eight  hundred  and  ninety-two.  (1892). 

Mr.  Williams:  I  have  an  amendment  to  that  Section  just 
read;  I  will  state  my  reasons  for  moving  it. 

The  Clerk  reads  the  amendment.  "Amend  Section  19  of  the 
report  of  the  Committee  on  Schedule  and  Ordinance,  by  striking 
out  the  dates,  1892  and  1894  where  they  occur  in  said  section,  and 
inserting  in  lieu  thereof  the  date  1891." 

Mr.  Will'ams:  I  will  move  the  adoption  of  the  amendment  of 
Section  19  as  read  which  motion  received  a  second. 

The  President:  Mr.  Williams  moves  to  amend  Section  19,  as 
read.  Is  the  Convention  ready  for  the  question? 

Mr.  Hole:  I  would  like  to  hear  the  amendment  read  again 
please. 

The  Clerk  again  reads  the  amendment. 

Mr.  Williams:  My  object  in  moving  that  amendment  will 
occur  to  you  upon  half  a  moment's  consideration.  In  the  second 
clause  of  the  Section  as  it  now  stands,  Sec.  19,  it  provides  that  the 
Governor,  Lieutenant  Governor,  Secretary  of  State,  Auditor, 
Treasures,  Attorney  General,  Superintendent  of  Public  Instruction, 
Commissioner  of  School  and  Public  Lands,  Judges  of  County  Courts, 
shall  hold  their  respective  offices  until  the  first  Tuesday  after  the 
first  Monday  in  January,  1892.  The  fourth  claus.  of  the  section 
provided  the  terms  of  office  of  the  members  of  the  Legislature  elected 
at  the  first  election  held  under  the  provisions  of  this  Constitution 
shall  expire  on  the  first  Tuesday  after  the  first  Monday  in  January, 
1892.  That  section  as  it  stands  and  Section  3  provides  that  the 
Judges  of  the  Supreme  and  Circuit  Courts  shall  hold  their  office  unt  1 
the  first  Tuesday  after  the  first  Monday  in  January,  1894,  in  fait. 
extends  the  time  and  provides  that  the  tenure  of  office  of  the  officers 
elected  in  tlrs  October  election  extends  beyond  the  time  of  tin- 
term  fixed  by  the  Constitution.  It  goes  beyond  the  necessity  which 
this  Slate  is  under  after  getting  into  the  Union  to  tide  over  until  an 
election  can  be  held  under  the  Constitution  1  take  it  the  only 
ity  by  the  provision  <>f  the  Schedule  and  Ordinance  is  to 
extend  over  the  time  until  the  people  vote  after  \\e  become  a 
State,  until  the  State  government  can  elect  their  State  otVuers 
and  no  longer. 

Further,  the  Constitution  provides  that  the  term  of  the  L. 
lature   of  the   members   of  the    Legislature,  shall   be   two   vears  :  it 


398  SOUTH  DAKOTA  DEBATES,  1889 

further  provides  that  the  Legislature  shall  meet  on  the  January 
following  the  election  of  each  Legislature.  This  provides  that  the 
Legislature  elected  in  October  shall  hold  until  January,  1892,  and 
the  first  meeting  of  this  Leg'slature  will  be  in  "January,  1890.  By 
the  Constitution  the  Legislature  must  again  assemble  in  January, 
1892.  And  also  by  the  terms  of  the  Constitution  the  Legislature 
elect  must  assemble  in  January  immediately  following  its  election. 
Now,  then,  if  the  terms  of  the  Legislators  elected  at  this  coming  Oc- 
tober election  extends  to  1892  the  only  way  that  the  Cent  tic  tional 
provision  can  be  complied  with  is  by  a  general  election  in  1891; 
the  Constitution  provides  that  the  Legislature  shall  assemble  in 
January  following  its  election.  Thus  offering  an  amendment  to  the 
Constitution — the  Constitution  provides  for  one  election  and  only 
one,  and  that  is  a  general  election.  We  have  upon  our  statute  books 
of  the  Territory  the  law  that  the  general  elections  occur  on  the  even 
numbered  years ;  it  is  undoubtedly  intended  the  first  gereral 
election  after  the-admission  of  the  State  will  occur  in  1890 ;  then  at 
that  time  the  Legislature  must  be  elected  again  and  will  assemble  in 
January,  1891  otherwise  if  this  report  is  adopted  there  will  have  to 
be  a  general  election  provided  for  by  the  Legislature  for  1891,  and 
they  must  assemble  in  January  following  their  election.  The  Legis- 
lature must  convene  every  two  years.  That  will  consequently 
coerce  the  Legislature  into  providing  an  election  for  each  year. 
This  I  take  it  is  not  in  accordance  with  the  wishes  of  the  people ;  I 
take  it,  it  is  not  in  accordance  with  the  Constitution. 

The  Constitution  also  provides  that  the  length  of  term  of 
office  of  the  Supreme  Court  Judges  that  are  elected  at  the  fint 
election  under  the  Constitution  shall  be  four  years,  and  after  that 
it  is  six  years  ;  and  that  the  Legislature  may  provide  by  law  for  the 
election  of  the  judges  of  the  courts  at  a  different  time  than  at  which 
other  officers  are  elected ;  and  in  order  that  they  may  do  this  the 
Constitution  gives  the  Legislature  the  power  to  extend  or  abridge 
the  term  of  office  of  any  officer  then  holding ;  but  it  nowhere  indicates 
that  this  Convention  even  if  it  was  in  the  provision  of  the  Consti- 
tution to  enact  that,  that  this  Convention  by  ordinance  may  pre- 
scribe for  the  term  of  office  of  either  the  State  or  County  officers. 
The. Judges  of  the  Courts  have  a  longer  time  than  the  Constitution 
prescribes.  A  constitution  having  fixed  a  time  at  which  the  Legis- 
lators must  assemble, — the  January  following  their  election  and 
only  provided  for  the  general  election  the  necessary  result  is  that 


MR.  HOLE'S  VIEWS  ON  TENURE  399 

the  Legislature  must  provide  for  a  general  election  in  1891.  And 
the  result  would  be  that  we  will  hold  a  general  election  each  yea  r 
This  amendment  that  I  have  offered  will  work  this  way ;  it  provides 
that  the  officers  elect,  that  his  office  will  hold  over  until  January 
1891,  leaving  it  until  the  general  election  in  1890  to  elect  a  full  set 
of  officers  of  County  officers  and  State  officers  and  Judges  of  the 
Courts.  It  will  also  leave  it  for  the  Legislature  hereafter  if  the 
people  demand  it  to  provide  for  a  general  election  every  year,  in 
which  the  Judges  may  be  elected  at  different  times  than  the 
other  officers.  I  think  it  will  meet  with  the  hearty  concurrence 
of  the  people  at  large  of  the  Territory  or  the  proposed  State  to 
provide  only  for  the  one  election  and  if  the  officers  were  to  hold  until 
January,  1891. 

Mr.  Hole:  Probably  the  foundation  question  in  this  is  whether 
the  officers  elected  this  fall  are  elected  under  the  Constitution.  Some 
argue  that  the  Constitution  not  being  adopted  that  they  cannot  be 
elected.  In  answer  to  that  we  say  if  they  are  elected,  and  the  Con- 
stitution falls,  they  fall  with  it.  This  is  the  proposition  submitted 
to  the  people;  the  Constitution,  if  it  stands,  the  officers  are  elected 
under  its  provisions  and  hold  under  its  provisions  of  the  Constitu- 
tion. The  Constitution  provides  in  Section  1  of  Article  4  that  the 
Governor  shall  hold  his  office  for  two  years,  if  we  elect  a  Governor  this 
fall  under  the  provisions  of  this  Constitution  and  I  would  say  that 
the  Schedule  and  Ordinance  as  passed  provides  that  we  do  hold  this 
election  under  the  provisions  of  this  Constitution,  then  we  elect 
Governor  and  Lieutenant  Governor  under  its  provisions,  it  will  quite 
naturally  follow  all  officers  elected  shall  serve  their  time  out  as 
provided  by  the  Constitution.  And  to  escape  any  possible  trouble 
in  this  direction,  it  seemed  safe  and  proper  to  your  Schedule  Com- 
mittee to  follow  the  provisions  of  the  Constitution,  knowing  that 
we  were  in  a  different  position  from  Constitutional  Conventions, 
as  a  rule.  We  have  only  partial  authority.  This  has  been  adopted 
and  voted  on  by  the. people;  we  merely  make  the  changes. 

Again  in  Sec  ti<>n  3.  "The  Governor  and  Lieutenant  Governor 
shall  be  elected  by  the  qualified  electors  of  the  State  at  the  time  and 
place  of  choosing  the  members  of  the  Legislature."  \\Y  choose  the 
members  of  the  Legislature  in  ( )i  tober ;  under  the  provision>  • 
tion  3  \ve  must  elet  t.  the  Governor  and  Lieutenant  Governor  at 
the  same  time  and  place.  We  ran  (rare  this  through  as  to  all  the 
officers  under  the  C'on>  1  itution.  In  Set  tion  S,  Article  5.  "The 


400  •       SOUTH  DAKOTA  DEBATES,  1889 

term  of  the  Judges  of  the  Supreme  Court,  who  shall  be  elected  at  the 
first  election  under  this  Constitution  shall  be  four  years."  At  the 
first  election  under  this  Constitution, — now  if  there  is  no  election 
under  the  Constitution  the  Supreme  Court  Judges  would  naturally 
hold  until  there  could  be  an  election  under  the  Constitution  which 
might  be  in  a  few  years  or  a  year  or  two  months.  It  has  not  seemed 
to  the  Committee  advisable  that  the  Judges  of  the  Supreme  Court 
of  South  Dakota  elected  for  the  first  term  should  be  elected  for  a 
short  time.  I  think  that  that  will  be  the  conclusion,  gentlemen, 
of  every  delegate  here.  That  it  is  not  desirable ;  that  the  Judges  of 
the  Supreme  Court  of  our  new  State  should  be  elected  for  so  short 
a  time. 

In  Section  15  of  this  same  article  we  find  "The  State  shall  be 
divided  into  Judicial  Circuits  in  each  of  which  there  shall  be  elected 
by  the  electors  thereof  one  Judge  of  the  Circuit  Court  therein  whose 
term  of  office  shall  be  four  years."  If  you  commence  to  cut  down 
the  time  of  these  offices,  this  same  difficulty  runs  through  every- 
thing. 

If  you  follow  the  provisions  of  this  Constitution,  it  makes  the 
terms  of  desirable  length.  The  one  thing  that  is  not  desirable  is 
having  an  election  every  year  instead  of  every  two  years ;  I  cannot 
say  that  this  will  be  desirable.  You  elect  all  the  officers  of  the 
State  and  County  and  Circuit  at  one  time,  and  there  is  so  much  op- 
portunity for  figuring  the  decision  of  many  of  our  State  is  that  they 
have  found  it  undesirable.  I  think  that  those  states  who  have  di- 
vided the  elections  up  have  found  it  most  desirable  for  good  govern- 
ment. 

Section  19  in  regard  to  County  Courts:  "There  shall  be  elected 
in  each  organized  County  a  County  Judge  who  shall  be  Judge  of  ihe 
County  Court  of  said  county,  whose  term  of  office  shall  be  two  years 
until  otherwise  provided  by  law."  Our  Schedule  conforms  to  this. 
In  Section  26,  "The  Judges  of  the  Supreme  Court,  Circuit  Courts, 
and  County  Courts  shall  be  chosen  at  the  first  election  held  under  the 
provisions  of  this  Constitution,  and  thereafter  as  provided  by  law, 
and  the  Legislature  may  provide  for  the  election  of  such  officers  on  a 
different  day  from  that  on  which  an  election  is  held  for  any  other 
purpose  and  may,  for  the  purpose  of  making  such  provision  extend  or 
abridge  the  term  of  office  for.any  of  such  Judges  then  holding,  but 
not  in  any  case  more  than  six  months." 


TENURE  OF  OFFICE  401 


In  Section  37  it  provides  for  the  appointment  of  officers  which 
was  discussed  the  other  evening. 

I  think  that  these  Sections, — Section  5  again  of  Article  9  pro- 
vides: "In  each  organized  county  at  the  first  election  held  after 
the  admissipn  of  the'  State  of  Dakota  into  the  Union",  you  will 
notice  the  different  provision  here,  the  next  election  provided  for 
in  Section  5  of  Article  8  reads:  "In  each  organized  County." 

Mr.  Williams:  May  I  ask  a  question?  Does  not  that  read, 
"The  first  general  election"? 

Mr.  Hole:     It  does  not  so  read  in  my  book.  Mil  •< 

Mr.  Humphrey ;  In  the  report  of  the  Committee  to  compare 
and  proof-read  the  Constitution  the  word  "general"  is  found  to  be 
there. 

Mr.  Hole:  This  election  is  provided  for  after  the  admission 
of  the  State;  the  other  elections  referred  to  are  provided  for  in  the 
Constitution.  I  say,  the  intent  of  the  makers  oi  the  Constitution 
was  to  make  the  officers  superior  to  the  adoption  of  the  Constitution, 
while  the  provision  for  the  State  government  to  take  the  place  of 
the  Territorial  government  was  after  the  adoption  leaving  the 
Territorial  officers  to  hold  until  after  the  beginning.  Section  5 
provides  for  the  County  officers  and  those  not  provided  for  un- 
der the  provisions  of  the  election  provided  for  under  the  Con- 
stitution. I  think  when  you  have  considered  this  and  read 
over  these  sections  with  the  same  care  that  your  committee  have, 
that  you  will  arrive  at  this  conclusion,  that  the  only  safe  way  is 
in  taking  the  course  to  follow  the  chart.  We  have  the  Constitution 
as  voted  upon.  That  has  been  our  conviction  and  while  it  may  be 
desirable  to  many  that  the  election  should  be  every  two  yean 
personal  matter,  I  think  it  is  best  the  way  it  is.  I  think  this  is  the 
intent  of  the  framers  of  the  Constitution  and  I  think  it  is  better. 

Mr.  Wood,  of  Pennington:  I  think  the  amendment  should  In- 
divided  into  Sections  to  which  the  amendment  refers,  because  it 
covers  two  dates,  the  date  1892  and  1894.  I  move  you  that  the 
question  raised  by  the  amendment  be  divided. 

Mr.   Williams:      1   will    accept    that    without    putting   it    , 
motion. 

'  Mr.  Sherwood,  of  Clark:  I  think  the  Chairman  of  the  Com- 
mittee has  perhaps  directed  our  attention  to  the  chief  question  at 
issue, — whether  we  are  holding  this  election  under  the  provisions 
of  the  Constitution  or  under  the  Omnibus  Bill.  I  think  we  are 


402  SOUTH  DAKOTA  DEBATES,  1889 

holding  the  election  under  the  provisions  of  the  Omnibus  Bill.  At 
the  present  time  the  Constitution  is  without  force.  We  stand  in  a 
somewhat  different  position  from  that  of  the  Convention  of  1885 
in  this  matter  from  the  fact  that  they  had  no  Enabling  Act  to  go 
by  and  perhaps  the  authority  they  had  must  have  been  that  of 
the  Legislature  calling  the  Constitutional  Convention.  It  ap- 
pears to  me,  however,  if  the  gentleman  is  correct  in  his  theory  that 
this  election  is  being  held  under  the  Constitution  that  we  may  strike 
another  trouble,  and  that  is  the  qualifications  of  electors ;  if  this 
is  being  held  under  the  provisions  of  the  Constitution'and  not  under 
the  Enabling  Act,  of  course,  then  the  provisions  of  the  Constitution 
will  prevail  as  to  the  qualifications  of  the  voter;  his  rights,  powers 
and  duties  will  be  governed  by  the  Constitution  in  that  election ; 
the  right  of  suffrage  I  apprehend  no  one  will  contend  that  for  a 
moment  because  of  Omnibus  Bill  especially  provides  what  the 
qualifications  of  the  voter  shall  be.  Section  3  says,  "That  all  per- 
sons who  are  qualified  by  the  lawrs  of  said  Territories  to  vote  for 
Representatives  to  the  Legislative  Assembly  thereof  are  hereby- 
authorized  to  vote  for  and  choose  delegates  to  form  Conventions 
in  said  proposed  States ;  and  the  qualifications  of  delegates  to  such 
Conventions  shall  be  such  as  by  the  laws  of  such  Territories  respec- 
tively persons  are  required  to  possess  to  be  eligible  to  the  Legislative 
Assemblies  thereof;  and  the  aforesiad  delegates  to  form  said  Con- 
ventions shall  be  apportioned  within  the  limits  of  the  proposed 
States  in  such  districts  as  may  be  established  as  herein  provided,  in 
proportion  to  the  population  in  each  of  said  Counties  and  Districts 
as  near  as  may  be,  to  be  ascertained  to  the  time  of  making  said  ap- 
portionments by  the  persons  hereinafter  authorized  to  make  the 
same,  from  the  best  information  attainable,  in  each  of  which  dis- 
tricts these  delegates  shall  be  elected,  but  no  elector  shall  vote  for 
more  than  two  persons  for  delegates  to  such  Conventions ;  that 
said  apportionments  shall  be  made  by  the  Governor,  the  Chief 
Justice,  and  the  Secretary  of  said  Territories ;  and  the  Governors  of 
said  Territories  shall,  by  proclamation,  order  an  election  of  the  dele- 
gates aforesaid  in  each  of  said  proposed  States, to  be  held  on  a  Tues- 
day after  the  second  Monday  in  May,  1889,  which  proclamation, 
shall  be  issued  on  the  15th  day  of  April,  1889;  and  such  election 
shall  be  conducted,  the  return  made,  the  result  ascertained,  and 
the  certificates  to  persons  elected  to  such  Convention  issued  in  the 
same  manner  as  is  prescribed  by  the  laws  of  said  Territories,  regu- 


TENURE  OF  OFFICE  403 

lating  elections  therein  for  delegates  to  Congress ;  and  the  number 
of  votes  cast  for  delegates  in  each  precinct  shall  also  be  returned. 
The  number  of  delegates  to  said  Conventions,  respectively,  shall 
be  seventy-five,  and  all  person  residents  in  said  proposed  States 
who  are  qualified  voters  of  said  Territories  as  herein  provided,  shall 
be  entitled  to  vote  upon  the  election  of  delegates  and  under  such  rule 
and  regulations  as  said  Conventions  may  prescribe,  not  in  conflict 
with  this  act  upon  the  ratification  or  rejection  of  the  Constitution. 
In  this  case,  the  Omnibus  Bill  claims  to  provide  for  this  election, 
and  any  person  shall  be  entitled  to  vote  who  is  entitled  to  vote  for 
members  of  the  Legislature  under  the  laws  of  the  Territory.  Be- 
lieving that  if  this  election  is  under  the  Constitution  that  there 
could  possibly  be  a  conflict  between  the  Omnibus  Bill  and  the  Con- 
stitution I  do  not  think  there  is  a  good  reason  for  the  amendment. 
I  am  therefore  opposed  to  this  amendment. 

Mr.  Hartley:  As  a  member  of  that  Committee  I  would  like  to 
say  a  word.  This  matter,  by  direction  of  the  Committee,  was 
submitted  to  a  sub-committee  of  which  I  was  a  member.  I  drew  the 
original  draft  of  this  Schedule.  I  had  embodied  in  it,  substantially, 
Mr.  Williams'  amendment.  By  vote  of  the  Committee  ii  was 
changed  as  reported.  While  I  assented  to  the  change,  still  I  am 
of  the  same  opinion  that  we  have  the  power  to  regulate  this  matter 
and  that  we  should  so  provide  that  these  officers  should  be  elected 
at  the  first  general  election  and  that  in  ascertaining  what  that  gen- 
eral election  means  as  used  in  the  Constitution  we  should  use  the 
legal  Territorial  definition  which  I  understand  under  the  statute  is 
to  the  effect  that  the  general  elections  are  held  on  the  even  numbered 
years.  In  my  mind  the  framers  of  this  report  had  that  definition 
in  view  when  they  used  this;  and  in  order  to  bring  the  election  <>t 
these  officers  upon  the  first  general  election  which  if  I  would  un- 
derstand it  would  be  in  the  year  1890.  I  am  in  favor  of  the  amend- 
ment as  proposed  by  Mr.  Williams  as  relating  to  the  second  sub- 
division of  Section  19,  Schedule  and  Ordinance  report. 

"The  Governor,  Lieutenant  Governor,  Secretary  of  State, 
Auditor,  Treasurer,  Attorney  General,  Superintendent  of  PuH  V 
Instruction,  Commissioner  of  School  and  Public  Lands.  Judges  of 
County  Courts,  shall  hold  their  respective  offices  until  tin-  fn>t 
Tin-day  after  the  first  Monday  in  January.  A.  D.,  1892.  at  twelve- 
o'clock.  M.,  and  until  their  successors  arc'  rkvtrd  and  qualified. 

Mr.  Price:      1  am  not  prcparc-d  to  discuss  this  <jwstiim  tonight  ; 


404  SOUTH  DAKOTA  DEBATES,  1889 

I  am  not,  this  evening,  even  prepared  to  intelligently  vote  upon  it. 
It  occurs  to  me,  however,  that  the  proposed  amendment  to  the 
original  article  is  worthy  of  careful  study  and  thoughtful  consider- 
ation of  the  members  of  this  Convention  and  from  the  diversity 
of  opinion  expressed  in  these  debates  I  would  say,  this  Convention 
is  not  ready  to  vote  upon  it  at  this  time.  I  have  no  doubt  we  all 
are  anxious  to  go  home,  but  this  is  a  matter  or  such  vast  importance 
it  should  not  be  acted  upon  hastily.  I  therefore  move  you  that 
further  consideration  of  this  report  be  postponed  until  tomorrow 
morning. 

This  motion  received  a  second. 

Mr.  Davies:  In  view  of  the  fact  that  we  are  drawing  pretty 
near  to  the  close  of  this  Convention  and  this  matter  has  been  brought 
before  the  Convention  several  days  ago  and  has  been  postponed 
until  this  night,  it  is  not  probable  that  more  careful  consideration 
will  be  given  it  if  we  should  postpone  it.  I  move  to  lay  this  motion 
upon  the  table.  . 

Mr.  Lee:     I  second  the  motion. 

The  President:  The  question  before  the  Convention  is  upon 
the  adoption  of  Section  19 ;  to  this  the  gentleman  from  Bon  Homme 
moves  an  amendment.  The  gentleman  from  Hyde  moves  to  post- 
pone ftirther  action  until  tomorrow  morning;  the  gentleman  from 
Edmunds  moves  to  lay  the  motion  upon  the  table.  Those  favoring 
the  motion  to  lay  this  amendment  upon  the  table  say  aye ;  those  op- 
posed say  no.  The  Chair  is  unable  to  decide. 

Calls  of  "Rising  vote". 

The  President:  Those  favoring  the  motion  as  stated,  please 
make  it  known  by  rising;  those  opposed  by  rising,  and  standing 
until  they  are  counted. 

The  President:  There  are  twenty-five  ayes  and  thirty-five 
noes.  The  motion  is  lost. 

The  President:  The  question  recurs  upon  the  motion  of  the 
gentleman  from  Hyde  that  further  consideration  of  Section  19 
be  postponed  until  tomorrow  morning  at  nine  o'clock. 

Mr.  Van  Buskirk:  I  have  desired  that  if  the  gentleman  from 
Hyde  would  give  way,  to  offer  the  motion  to  the  effect  that  this 
Section  19  of  the  amendment  be  referred  back  to  the  Committee 
for  Turther  consideration  to  report,  perhaps  at  two  o'clock  tomorrow. 

A  Voice:  No,  we  do  not  want  it  referred  back  to  the  Com- 
mittee Tor  further  consideration. 


TENURE  OF  OFFICE  405 

Voices  from  different  parts  of  the  hall  "No.  no." 

Mr.  Van  Buskirk:  I  was  going  to  add  that  if  they  have  the 
power  and  we  think  they  have,  that  they  so  amend  that  Section  19 
as  so  that  we  may  avoid  that  one  election  that  all  the  officers/both 
county  and  State  may  be  elected  trie  same  time  and  that  it  would 
behoove  the  Committee  to  consider  it  a  little  further;  perhaps  there 
has  been  some  little  additional  light  found  by  the  Committee  upon 
this  since  it  was  reported. 

Mr.  Hole:  The  motion  before  the  House  now  is  to  postpone 
this  until  tomorrow  morning  and  for  one  I  would  like  to  hear  from 
every  gentleman  upon  this  very  question.  I  don't  think  there  is 
any  conflict  to  it  and  we  would  like  to  hear  from  every  member  of 
this  Convention  upon  this  very  important  question. 

Mr.  Price:  I  want  the  gentlemen  of  this  Convention  to  have 
an  opportunity  to  study  this  provision  in  this  Schedule  Report. 
I  have  been  absent  to  North  Dakota ;  I  want  this  courtesy  shown 
so  that  I  can  have  an  opportunity  to  study  it  so  that  I  can  vote 
intelligently. 

Mr.  Wescott:  It  seems  that  we  have  had  this  letter  before 
us  four  or  five  days.  I  am  ready  to  vote  tonight  as  well  as  to- 
morrow morning. 

Mr.  Williams:  I  am  ready  to  vote  upon  this  proposition  now, 
some  of  these  gentlemen  have  been  away  considering  other  matters. 
I  would  like  that  they  have  time  to  consider  it  if  they  desire  it. 

The  President:  I  think  that  Rule  6  determines  this  question 
that  is,  the  motion  made  by  the  gentleman  from  Hyde  to  postpone 
consideration  of  this  question  until  tomorrow  takes  precedence 
of  the  motion  to  commit.  The  question  then  before  the  Convention 
is,  that  further  consideration  of  this  matter  be  postponed  until 
tomorrow  morning  at  nine  .  o'clock.  Those  favoring  the  motion 
please  make  it  known  by  saying  aye;  and  those  opposed  by  saying 
no.  The  ayes  appear  to  have  it ;  the  ayes  have  it ;  the  further  con- 
sideration of  the  motion  to  adopt  Section  19  and  the  amendments 
thereto  is  postponed  until  tomorrow  morning  at  nine  o'clock. 

Mr.  Hole:     I  move  you  that  Section  20  be  adopted. 

Which  motion  received  a  second. 

Mr.  Hartley:  I  would  move  that  Section  20  by  deterred  until 
tomorrow  morning.  Its  form  depends  upon  the  decision  of  the 
Convention  in  regard  to  19. 


406  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Hole:  I  will  withdraw  the  motion.  I  think  that  that  is 
proper. 

Mr.  Hole:     I  move  the  adoption  of  Sections  21  and  22. 

Which  motion  received  a  second. 

The  Clerk:     SEC.  2 1 .     The  following  form  of  ballot  is  adopted: 

Constitutional  Ticket. 

INSTRUCTIONS  TO  VOTERS. 

All  persons  desiring  to  vote  for  the  Constitution  or  for  any  of 
the  articles  submitted  to  a  separate  vote,  may  earase  the  word 
"No". 

All  persons  who  desire  to  vote  against  the  Constitution  or  any 
articles  separately  submitted,  may  erase  the  word  "Yes". 

For  the  Constitution.     Yes.     No. 

For  Prohibition.     Yes.  No. 

For  Minority  Representation.     Yes.  No. 

For. as  temporary  seat  of  government. 

For  Governor. 


For  Lieutenant  Governor 
For  Secretary  of  State. 
For  Auditor. 
For  Treasurer. 
For  Attorney  General. 
For  Superintendent  of  Public  Instruction. 
For  Commissioner  of  School  and  Public  Lands. 
For  Judges  of  the  Supreme  Court. 


First  District... 


SCHEDULE  AND  ORDINANCE  407 

Second  District 

Third  District 

For  Judge  of  the  Circuit  Court Circuit . 

For  Representatives  in  Congress. 


For  State  Senator. 

For  Representatives  in  the  Legislature. 
For  County  Judge. 


SEC.  22.  This  Constitution  shall  be  engrossed,  and  after  adop- 
tion and  signing  by  the  Convention  shall  be  delivered  to  Hon.  A. 
J.  Edgerton,  the  President  of  the  Constitutional  Convention  for 
safe  keeping,  and  by  him  to  be  delivered  to  the  Secretary  of  State 
as  soon  as  he  assumes  the  duties  of  his  office,  and  printed  copies 
thereof  shall  be  prefixed  to  the  books  containing  the  laws  of  the 
State  and  all  future  editions  thereof. 

The  President  of  this  Convention  shall  also  supervise  the  mak- 
ing of  the  copy  that  must  be  sent  to  the  President  of  the  United 
States ;  said  copy  is  to  be  certified  by  the  President  and  Chief  Clerk 
of  this  Convention. 

The  President:  The  question  before  the  Convention  is  tin- 
adoption  of  Sections  21  and  22  of  the  Schedule  report.  Those 
favoring  this  motion  as  stated  make  it  known  by  saying  aye ;  those 
opposed,  ;'f  any,  by  saying  no.  The  ayes  appear  to  have  it;  the 
ayes  have  it  and  Sections  21  and  22  are  adopted. 

Mr.  Kellam:     As  from  the  report  that  is  now  being  coni-idm-d 
as  printed,  this  seems  to  be  the  last  section  of  the  report.  I  drsin- 
to  say  before  the  report  is  closed  and  acted  upon  by  the  Convention 
that  the  Joint  Commission  at  Bismarck,  by  resolution,  agreed  to 
recommend  certain  provisions  to  be  inserted  in  the  Schedule  ot  the 
respective  Constitutions  of  North  Dakota  and  South  Dakoi 
only  speak  of  it  now  so  that  these  matters  may  be  comi<U 
i onni't  tion  with  tin-  Schedule. 

Mr.  Hole:     I  would  think  if  tlii-n-  is  i.thi-r  matters  t«»  In-  con- 


'408  SOUTH  DAKOTA  DEBATES,  1889 

sidered  in  connection  with  the  Schedule,  if  those  other  matters  are 
ready,  it  would  be  well  to  report  them  now  so  that  they  can  be 
considered. 

Major  Kellam:  The  recommendation  of  the  Joint  Commission 
is  dependent  upon  and  follows  the  agreement  that  has  been  made 
by  the  Joint  Commission  and  applies  exclusively  to  the  arrangement 
that  was  made  by  that  Joint  Commission  in  reference  to  the  dis- 
tribution of  the  records  of  the  Territory  of  Dakota  and  if  I  might  do 
so,  as  the  hour  is  getting  well  advanced,  and  for  reasons  that  you 
will  all  understand  when  I  suggest  that  copies  of  this  agreement  may 
possibly  appear  in  the  morning  papers  of  both  Sioux  City  and  his 
city.  There  would  be  an  impropriety  in  that  agreement  appearing 
in  the  newspapers  before  its  formal  presentation  to  this  Convention. 
I  would  like  to  present  the  agreement  to  this  Convention,  so  as  to 
save  any  violation  of  propriety  that  might  occur  from  publication 
of  this  prior  to  its  being  formally  presented  to  this  Convention. 
And  if  it  should  be  satisfactory  to  the  Convention,  having  already 
disposed  of  this  report  of  this  Committee  on  Schedule  so  far  as 
printed.  To  receive  this  report  now,  it  would  put  the  matter  then 
in  shape  so  that  it  might  properly  be  published  tomorrow. 

Mr.  Williams:     T would  move  that  the  report  be  received. 

The  President:  It  does  not  need  any  motion.  The  gentleman 
from  Brule  is  in  order. 

The  report  of  the  Joint  Commission  was  received  by  the  Con- 
vention as  follows 

WHEREAS,  By  an  Act  of  Congress,  approved  February  22, 
1889,  entitled  "An  Act  to  Provide  for  the  Division  of  Dakota  into 
two  States,  and  to  Enable  the  People  of  North  Dakota,  South 
Dakota,  Montana  and  Washington  to  form  Constitutions  and  State 
governments  and  to  be  admitted  into  the  Union  on  an  equal  footing 
with  the  original  States  and  to  Make  Donation  of  Public  Lands  to 
Such  States."  It  was  among  other  things  provided  that  when  the 
Constitutional  Convention  of  North  Dakota  and  the  Constitutional 
Convention  of  South  Dakota,  which  by  said  Act  were  duly  provided 
for  and  authorized,  should  assemble  and  organize  as  in  said  Act 
provided,  it  should  be  and  become  the  duty  of  said  Conventions 
respectively  to  appoint  a  Joint  Commission  to  be  composed  of  not 
less  than  three  members  of  each  Convention,  whose  duty  it  should 
be  to  assemble  at  Bismarck,  the  present  seat  of  government  of  said 
.  Territory  and  agree  upon  an  equitable  division  of  all  property  be- 
longing to  the  Territory  of  Dakota,  the  disposition  of  all  public 
records  and  also,  adjust  and  agree  upon  the  amount  of  the  debts 


REPORT  OF  JOINT  COMMITTEE  409 

and  liabilities  of  the  Territory,  which  shall  be  assumed  and  paid  by 
each  of  the  proposed  states  of  North  Dakota  and  South  Dakota,  and 

WHEREAS,  The  said  Constitutional  Conventions  of  North  Da- 
kota and  South  Dakota  having  been  duly  elected  and  assembled 
and  organized  in  pursuance  of  and  as  provided  in  said  Act  did,  as 
therein  required  and  provided  and  for  the  purposes  therein  specified, 
appoint  a  Joint  Commission,  consisting  of  not  less  than  three  mem- 
bers of  each  Convention ,  towit :  Seven  members  of  each  Convention 
as  follows,  to-wit: 

E.  W.  Camp,  B.  F.  Spalding,  Alex  Griggs,  Andrew  Sandager, 
W.  E.  Purcell,  Harvey  Harris  and  J.  W.  Scott.,  appointed  by  the 
Convention  of  North 'Dakota,  and  A.  G.  Kellam,  V.  T.  McGilly- 
cuddy,  Henry  Neill,  E.  W.  Caldwell,  William  Elliott,  Charles  H. 
Price,  and  S.  F.  Brott,  appointed  by  the  Convention  of  South  Da- 
kota, and 

WHEREAS,  The  said  Joint  Commission  so  appointed  and  com- 
posed, having  duly  assembled  at  Bismarck,  as  by  said  Act  provided, 
and  being  now  and  here  so  assembled,  and  having  as  such  Joint 
Commission  duly  and  carefully  considered  the  several  matters  which 
by  said  Act  are  referred  to  them  for  disposition  and  agreement,  do 
now  adopt  and  confirm  the  following  agreement,  compact  and  con- 
vention, that  is  to  say: 

I. 

This  agreement  shall  take  effect  and  be  in  force  from  and  after 
the  admission  into  the  Union  as  one  of  the  United  States  of  Amer- 
ica, of  either  the  State  of  North  Dakota  or  the  State  of  South 
Dakota. 

II. 

The  words  "State  of  North  Dakota"  wherever  used  in  this 
Agreement  shall  be  taken  to  mean  Territory  of  North  Dakota  in  i  ase 
the  State  of  South  Dakota  shall  be  admitted  into  the  Union  prior 
to  the  admission  into  the  Union  of  the  State  of  North  Dakota  ;  and 
the  words  "State  of  South  Dakota",  wherever  used  in  this  Agree- 
ment shall  be  taken  to  mean  the  Territory  of  South  Dakota  in  case 
the  State  of  North  Dakota  shall  be  admitted  into  the  Union  prior 
to  the  admission  into  the  Union  of  the  State  of  South  Dakota. 

III. 

Upon  the  taking  effect  of  this  Agreement  all  tin-  right,  title, 
claim  and  interest  of  tin-  Territory  of  Dakota  in  and  to  ;mv  public 
institutions,  grounds  or  buildings  situated  within  the  limits  «»t  the 
proposed  State  of  North  Dakota,  as  such  limits  are  defined  in  -aid 
Act  of  Congress,  shall  vest  in  said  State  of  North  Dakota,  and  -aid 
State  of  North  Dakota  shall  assume  and  pay  all  bonds  issued  In- 
fertile purchase,  construction,  a- pairs  or  maintenance  ot  such 


410 


SOUTH  DAKOTA  DEBATES,  1889 


public  institutions,  grounds  or  buildings  and  shall  pay  all  warrants 
issued  under  and  by  virtue  of  that  certain  Act  of  the  Legislature 
Assembly  of  the  Territory  of  Dakota,  approved  March  8th,  1889, 
entitled,  "An  Act  to  Provide  for  the  Refunding  of  Outstanding 
Warrants  Drawn  on  the  Capitol  Building  Fund." 

IV. 

Upon  the  taking  effect  of  this  Agreement,  all  right,  title,  claim 
and  interest  of  the  Territory  of  Dakota  in  and  to  any  public  insti- 
tutions, grounds  or  buildings  situated  within  the  limits  of  the  pro- 
posed State  of  South  Dakota,  as  defined  in  said  Act  of  Congress, 
shall  vest  in  said  State  of  South  Dakota.  And  said  State  of  South 
Dakota  shall  assume  and  pay  all  bonds  issued  by  the  Territory  of 
Dakota  to  provide  funds  for  the  purchase,  construction,  repairs 
or  maintenance  of  such  public  institutions,  grounds  or  buildings. 

V. 

That  is  to  say: 

The  State  of  North  Dakota  shall  assume  and  pay  the  following 

bonds  and  indebtedness,  to-wit: 

Bonds  issued  on  account  of  the  Hospital  for  Insane  at 
Jamestown,  North  Dakota,  the  face  aggregate  of 
whichis  $266,000  00 

Bonds  issued  on  account  of  the  North  Dakota  Univer- 
sity at  Grand  Forks,  North  Dakota,  the  face  ag- 
gregate of  which  is 96, 700"  00 

Bonds  issued  on  account  of  the  Penitentiary  at  Bis-  £  IfJIW 

marck,  the  face  aggregate  of  which  is 93,600  00 

Refunding  Capitol  Building  Warrants,  dated  April  1, 

1889  83,507  46 

And  the  State  of  South  Dakota  shall  assume  and 
pay  the  following  bonds  and  indebtedness,  to-wit: 

Bonds  issued  on  account  of  the  Hospital  for  the  Insane 
at  Yankton,  South  Dakota,  the  face  aggregate  of 
whichis  210,000  00 

Bonds  issued  on  account  of  the  School  for  Deaf  Mutes 
at  Sioux  Falls,  South  Dakota,  the  face  aggregate 
ofwhichis  51,000  00 

Bonds  issued  on  account  of  the  University  at  Vermil- 

lion,  South  Dakota,  the  face  aggregate  of  which  is        75,000  00 

Bonds  issued  on  account  of  the  Penitentiary  at  Sioux 
Falls,  South  Dakota,  the  face  aggregate  of  which 
is  94,300  00 

Bonds  issued  on  account  of  the  Agricultural  College  at 
Brookings,  South  Dakota,  the  face  aggregate  of 
whichis  97,000  00 

Bonds  issued  on  account  of  the  Normal  School  at  Mad- 
ison, South  Dakota,  the  face  aggregate  of  which  is  49,400  00 


REPORT  OF  JOINT  COMMITTEE  411 

Bonds  issued  on  account  of  the  School  of  Mines  at 
Rapid  City,  South  Dakota,  the  face  aggregate  of 
which  is  ..'. 33,000  00 

Bonds  issued  on  account  of  the  Reform  School  at 
Plankinton,  South  Dakota,  the  face  aggregate  of 
whichis  30,000  00 

Bonds  issued  on  account  of  the  Normal  School  at 
Spearfish,  South  Dakota,  the  face  aggregate  of 
whichis  25,000  00 

Bonds  issued  on  account  of  the  Soldiers'  Home  at  Hot 

Springs,  South  Dakota  the  face  aggregate  of  which  45 ,000  00 

VI. 

Each  State  shall  receive  all  unexpended  balances  of  the  pro- 
ceeds of  the  bonds  which  it  so  assumes,  whether  such  balances  have 
been  covered  back  into  the  treasury  or  not. 

VII. 

All  furniture,  fixtures,  provisions,  appurtenances  and  ap- 
pliances, tools,  implements,  -  and  other  movable  property  of  the 
Territory  of  Dakota,  situate  in  or  used  in  connection  with  any  of 
the  said  public  institutions,  grounds  or  buildings,  shall  become  and 
be  the  property  of  the  State  or  Territory  in  which  such  grounds, 
buildings  or  institutions  may  be  situated,  except  as  herein  specifi- 
cally provided. 

VIII. 

In  case  of  loss  in  whole  or  part  of  any  of  the  property  of  the 
Territory  of  Dakota  prior  to  the  taking  effect  of  this  agreement, 
the  State  in  which  such  property  would  have  \iested  if  the  same  had 
not  been  destroyed,  or  in  which  such  property  so  injured  shall  vest, 
shall  receive  any  sums  pay  able  upon  policies  of  insurance  issued  upon 
such  property ;  and  if  loss  not  covered  by  insurance  occurs  on  any 
of  such  property,  such  loss  shall  be  borne  by  the  State  in  which  it  is 
hereby  agreed  that  such  property  would  vest  on  the  taking  effect 
of  this  agreement. 

IX. 

Upon  the  taking  effect  of  this  agreement  all  unearned  premiums 
of  insurance  shall  vest  in  the  State  or  Territory  in  which  the  prop- 
erty insured  thereby  shall  vest. 


The  States  of  North  Dakota  and  South  Dakota  shall  pay  one- 
half  of  all  liability  now  existing  or  hereafter  and  prior  t<>  the  taking 
effect  of  this  agreement  incurred,  except  those  lurctofore  or  here- 


412  SOUTH  DAKOTA  DEBATES,  1889 

after  incurred  on  account  of  public  institutions,  grounds  or  public 
buildings,  except  as  otherwise  herein  specifically  provided. 

XL 

Each  of  said  States  shall  succeed  to  all  rights  of  the  Territory 
of  Dakota  upon  contracts  for  public  works  within  such  State  or 
upon  bonds  given  to  secure  the  performance  of  such  contracts. 

XII. 

All  other  bonds  issued  prior  to  the  taking  effect  of  this  Agree- 
ment upon  which  is  a  cause  of  action  has  or  shall  prior  to  the  tak- 
ing effect  of  this  agreement  accrue  to  the  Territory  of  Dakota  shall 
be  sued  upon  by  the  State  of  North  Dakota,  and  it  is  hereby  made 
the  duty  of  said  State  to  sue  thereon,  and  one-half  of  the  penalties 
or  damage  collected  by  said  State  thereon  shall  be  paid  over  to 
the  other  State,  and  the  costs  of  such  suit  or  collection  shall  be 
borne  equally  by  said  States,  save  as  it  may  be  necessary  to  apply 
such  proceeds  otherwise  in  order  to  carry  into  effect  the  provis  ons 
•of  Article  XXI  of  this  agreement. 

XXII. 

The  furniture,  fixtures,  appliances  and  appurtenances  used  in 
and  about  or  pertaining  to  the  public  offices  of  the  Territory  shall 
be  the  property  of  the  State  within  the  proposed  limits  of  which 
said  offices  are  now  kept. 

XIV 

The  Territorial  Library,  including  such  books  and  volumns  as 
may  be  added  thereto  prior  to  the  taking  effect  of  this  agreement, 
shall  be  the  property  of  the  State  of  South  Dakota. 

XV. 

One-half  of  all  the  copies  of  the  Complied  Laws  of  the  Territory 
of  Dakota,  Revised  Codes  and  of  all  Session  Laws,  printed  Journals 
of  the  House  and  Council  of  the  Legislative  Assembly  of  said  Ter- 
ritory, and  of  other  printed  reports  of  offices  of  the  Territory  (ex- 
cept those  composing  a  part  of  said  library),  re-maining  undisturbed 
or  undisposed  of  according  to  law  at  the  taking  effect  of  this  agree- 
ment, shall  be  delivered  on  demand  to  the  proper  authorities  of  the 
State  of  South  Daokta. 

XVI. 

All  arms,  ammunition,  quartermaster's  and  ordnance  stores 

distributed  to  and  now  in  possession  of  militia  companies  of  the 

Territory  of  Dakota  shall  remain  in  their  possession,  and  all  the 

right,  title  and  interest  of  the  Territory  of  Dakota  in  and  to  such 

arms,  ammunition  and  stores  shall  vest  in  the  State  in  which  the 


REPORT  OF  JOINT  COMMITTEE  415 

armories  or  headquarters  of  such  companies  shall  be  situated.  All 
45-caliber  rifles  and  ammunition  of  same  caliber  stored  in  Capitol 
at  Bismarck  and  45-caliber  rifles  heresofore  issued  to  Company  F, 
First  Regiment,  at  Bismark,  shall  be  the  property  of  North  Dakota' 

XVII. 

All  other  arms,  ammunition,  quartermaster's  and  ordnance 
stores  shall  be  equally  divided  between  the  States  of  South  Dakota 
and  North  Dakota. 

XVIII. 

All  other  items  of  personal  property  and  miscellaneous  effects 
belonging  to  the  Territory  except  tbe  Territorial  Library  and  the 
Territorial  records  and  archives,  shall  be  divided  as  nearly  equally 
as  possible  between  North  and  South  Dakota. 

XIX. 

The  State  of  South  Dakota  shall  pay  the  State  of  North  Dakota 
forty-six  thousand  five  hundred  dollars,  on  account  of  the  excess 
of  Territorial  appropriations  for  the  permanent  improvement  of 
Territorial  institutions  which  under  this  agreement  will  go  to 
South  Dakota,  and  in  full  of  the  undivided  one-half  interest  of  North 
Dakota  in  the  Territorial  Library,  and  in  full  settlement  of  unbal- 
anced accounts,  and  of  all  claims  against  the  Territory,  of  whatever 
nature,  legal  or  equitable,  arising  out  of  the  alleged  erroneous  or 
unlawful  taxation  of  Northern  Pacific  railroad  lands  and  the  pay- 
ment of  said  amount  shall  discharge  and  exempt  the  State  of 
South  Dakota  from  all  liability  for  or  on  account  of  the  sev- 
eral matters  hereinbefore  referred  to,  nor  shall  either  State  be 
called  upon  to  pay  or  answer  to  any  portion  of  liability  here- 
after arising  or  accruing  on  account  of  transactions  heretofore 
had,  which  liability  would  be  a  liability  of  the  Territory  of  Da- 
kota had  such  Territory  remained  in  existence,  and  which  liability 
shall  grow  out  of  matters  c  ounce  ir<l  with  any  public  institutions 
grounds  or  buildings  of  the  Territory  situated  or  located  within 
the  boundaries  of  the  other  State. 


Neither  State  shall  pay  any  portion  of  the  liability  of  the  Ter- 
ritory arising  out  of  the  erroneous  fixation  of  property  situated  in 
tlu.-  other  State. 


A  final  adjustment  of  aecounts  shall  be  made  upon  t  he  following 
ha.  is:  North  Dakota  shall  he  rhargnl  with  all  .-inns  paid  on  ac- 
count  of  the  public  institutions,  grounds,  or  buildings  located  with- 
in its  boundaries  on  account  of  the  Current  appropriations  since 


414  SOUTH  DAKOTA  DEBATES,  1889 

March  8th,  1889:  and  South  Dakota  shall  be  charged  with  all  sums 
paid  on  account  of  public  institutions,  grounds  or  buildings  located 
within  its  boundaries  on  the  same  account  r  nd  during,  the  same 
time.  Each  State  will  be  charged  with  one-half  of  all  other  ex- 
penses of  the  Territorial  government  during  the  same  time.  All 
moneys  paid  into  the  Treasury  dur  ng  the  period  from  March  8th, 
1889,  to  the  time  of  the  taking  effect  of  this  agreement  by  any 
county,  municipality  or  person  within  the  limits  of  the  proposed 
State  of  North  Dakota  shall  be  credited  to  North  Dakota;  and  all 
such  sums  paid  into  said  Treasury  within  the  said  time  by  .  ny 
county,  municipality  or  person  within  the  limits  of  the  proposed 
State  of  South  Dakota  shall  be  credited  to  the  State  of  South  DaT 
kota ;  except  that  any  and  all  taxes  on  gross  earnings  paid  into  said 
Treasury  by  railroad  corporations  since  the  8th  day  of  March  based 
upon  the  earnings  of  the  years  prior  to  1888,  under  and  by  virtue  of 
the  Act  of  the  Legislative  Assembly  of  the  Territory  of  Dakota 
approved  March  7th,  1889,  and  entitled  "An  Act  Providing  for 
the  Levy  and  Collection  of  Taxes  upon  Property  of  Railroad  Com- 
panies in  this  Territory",  being  Chapter  107  of  the  Sersion  Laws 
of  1889  (that  is,  the  part  of  such  sums  going  to  the  Territory),  shall 
be  equally  divided  between  the  States  of  North  Dakota  and  South 
Dakota.  And  all  taxes  heretofore  or  hereafter  paid  into  the  said 
Treasury  under  and  by  virtue  of  the  Act  last  mentioned,  based  on 
gross  earnings  of  the  year  1888,  shall  be  distributed  as  already 
provided  by  law,  except  that  so  much  thereof  as  goes  to  the  Ter- 
ritorial treasury  shall  be  divided  as  follows:  North  Dakota  shall 
have  so  much  thereof  as  shall  be  or  has  been  paid  by  railroads  within 
the  limits  of  the  proposed  State  of  North  Dakota,  and  South  Dakota 
so  much  thereof,  as  shall  be  or  has  been  paid  by  railroads  within  the 
limits  of  the  proposed  State  of  South  Dakota.  Each  State  shall  be 
credited,  also  with  all  balances  of  appropriations  made  by  the  Seven- 
teenth Legislative  Assembly  of  the  Territory  of  Dakota,  for  the 
account  of  the  public  institutions,  grounds  or  buildings  located  with- 
in its  limits  remaining  unexpended  on  March  8th,  1889.  .If  there 
shall  be  any  indebtedness  except  the  indebtedness  represented  by 
the  bonds  and  refunding  warrants  hereinbefore  mentioned, each 
State  shall  at  the  time  of  such  final  adjustment  of  accounts,  assume  its 
share  of  said  inedbtedness  as  determined  by  the  amount  paid  on 
account  of  the  public  institutions,  grounds  or  buildings  of  such 
State  in  excess  of  the  receipts  from  counties,  municipalities,  rail- 
road corporations  or  -persons  within  the  limits  of  said  State  as  pro- 
vided in  this  Article ;  and^if  there  should  be  a  surplus  at  the  time  of 
such  final  adjustment  each  State  shall  be  entitled  to  the  amount  re- 
ceived from  counties,  municipalities,  railroad  corporations  or  persons 
within  its  limits,  over  and  above  the  amount  charged  to  it. 

XXII. 

The  payment  from  South  Dakota  to  North    Dakota    shall  be 


REPORT  OF  JOINT  COMMITTEE  415 

made  by  South  Dakota's  assuming  North  Dakota's  share  or  current 
liabilities  at  the  time  of  the  final  adjustment,  to  the  extent  of  South 
Dakota's  indebtedness  under  this  agreement,  to  North  Dakota; 
and  if  any  balance  shall  remain  due  to  North  Dakota  from  South 
Dakota,  payment  of  said  balance  shall  be  provided  for  by  the  first 
Legislature  ofjSouth  Dakota. 

XXIII. 

Upon  the  taking  effect  of  this  agreement  all  claims  for  taxes 
due  the  Territory  of  Dakota  shall  become  the  property  of  and  may 
be  collected  by  the  State  or  Territory  within  the  limits  whereof  the 
counties  are  situated  against  which  such  taxes  stand  charged  upon 
the  Territorial  Treasurer's  books. 

But  this  Article  shall  not  be  held  to  refer  to  or  govern  the  dis- 
posal of  any  taxes  to  be  paid  by  railroad  corporations  which  are 
specifically  provided  for  by  Article  XXI  thereof. 

XXIV. 

All  other  claims  and  demands  of  the  Territory  of  Dakota  out- 
standing when  this  agreement  shall  take  effect,  the  collection 
whereof  is  not  hereinbefore  provided  for,  shall  be  sued  upon  and 
collected  by  the  State  of  South  Dakota,  and  the  costs  of  suits  so 
brought  and  the  amounts  collected  shall  be  divided  equally  between 
the  two  States  of  North  Dakota  and  South  Dakota. 

And  said  Commission  so  assembled  and  acting  under  and  by 
virtue  of  the  authority  upon  it  by  said  Act  of  Congress  conferred, 
further  agrees  as  follows: 

1. 

The  following  books,  records  and  archives  of  the  Territory  of 
Dakota  shall  be  the  property  of  North  Dakota,  to-wit  ; 

All  records,  books  and  archives  in  the  offices  of  the  Governor 
and  Secretary  of  the  Territory  (except  records  of  Articles  of  Incor- 
poration of  Domestic  Corporations,  returns  of  election  of  delegates 
to  the  Constitutional  Convention  of  1889  for  South  Dakota,  returns 
of  elections  held  under  the  so-called  Local  Option  Law  in  counties 
within  the  limits  of  South  Dakota,  bonds  of  Notaries  Public  ap- 
pointed for  counties  within  the  limits  of  South  Dakota,  pa  pi 
luting  to  the  organization  of  counties  situated  within  tin-  limits  <>t 
South  Dakota,  all  ofwhu  h  records  and  archives  are  a  part  of  the 
records  and  archives  of  said  Secretary's  offu  c ;  oucpting  a!>»» 
census  returns  from  counties  situated  within  tin-  limit-  of  South 
Dakota  and  papers  relating  to  requisitions  issued  upon  the  ap- 
plication of  officers  of  counties  situated  wit  bin  tin-  limits  of  South 
Dakota,  all  of  which  are  part  of  the  records  and  an  hives  of  sai«l 
Governor's  office). 


416  SOUTH  DAKOTA  DEBATES,  1889 

And  the  following  records,  books  and  archives  shall  also  be 
the  property  of  the  State  of  North  Dakota,  to-wit: 

Vouchers  in  the  office  or  in  the  custody  of  the  Auditor  of  this 
Territory  relating  to  expenditures  on  account  of  public  institutions, 
grounds  or  buildings  situated  within  the  limits  of  North  Dakota; 
one  Warrant  Register  in  the  office  of  the  Treasurer  of  this  Territory, 
being  the  record  of  warrants  issued  under  and  by  virtue  of  Chapter 
Twenty-four  of  the  laws  enacted  by  the  Eighteenth  Legislative 
Ajsemb  y  of  Dakota  Territory;  all  letters,  receipts  and  vouchers  in 
the  same  office  now  filed  by  counties  and  pertaining  to  counties 
within  the  limits  of  North  Dakota;  paid  and  cancelled  coupons  in 
the  same  office  representing  interest  on  bonds  which  said  State  of 
North  Dakota  is  to  assume  to  pay ;  reports  of  gross  earnings  of  the 
year  1888  in  the  same  office,  made  by  corporations  operating  lines 
or  railroads  situated  wholly  or  mainly  within  the  limits  of  North 
Dakota;  records  and  papers  of  the  office  of  the  Public  Examiner  of 
the  Second  District  of  the  Territory;  records  and  papers  of  the 
office  of  the  Second  District  Board  of  Agriculture ;  records  and  papers, 
in  the  offite  of  the  Board  of  Pharmacy  of  the  District  of  North. 
Dakota. 

All  records,  books  and  archives  of  the  Territory  of  Dakota 
which  is  not  herein  agreed  shall  be  the  property  of  North  Dakota, 
shall  be  the  property  of  South  Dakota. 

The  following  books  shall  be  copied  and  the  copies  shall  be  the 
property  of  North  Dakota  and  the  cost  of  such  copies  shall  be  borne 
equally  by  the  said  States  of  North  Dakota  and  South  Dakota,  that 
is  to  say: 

Appropriation  Ledger  for  years  ending  November,  1889,  and 
1890,  one  volume; 

The  Current  Warrant  Auditor's  Register, — one  volume; 
Insurance  Record  for  1889, — one  volume ; 
Treasurer's  Cash  Book — "D"; 
Assessment  Ledger — "B". 

Dakota  Territory  Bond  Register — one  volume ; 
Treasurer's  Current  Ledger — one  volume. 

The  originals  of  the  foregoing  volumes,  which  are  to  be  copied^ 
shall  at  any  time  after  such  copying  shall  have  been  completed,  be 
delivered  on  demand  to  the  proper  authorities  of  the  State  of  South 
Dakota. 

All  other  records,  books  and  archives  which  it  is  hereby  agreed 
shall  be  the  property  of  South  Dakota  shall  remain  at  the  Capitol 
of  North  Dakota  until  demanded  by  the  Legislature  of  the  State 
of  South  Dakota,  and  until  the  State  of  North  Dakota  shall  have 
had  a  reasonable  time  after  such  demand  is  made  to  provide  copies 
or  abstracts  or  such  portions  thereof  as  the  said  State  of  North 
Dakota  may  desire  to  have  copies  or  abstracts  thereof. 

The  State  of  South  Dakota  may  also  provide  copies  or  abstracts 
of  such  records,  books  and  archives  which  is  agreed,  shall  be  the 


REPORT  OF  JOINT  COMMITTEE  417 

property  of  North  Dakota  as  said  State  of  South  Dakota  shall 
desire  to  have  copies  or  abstracts  of. 

The  expense  of  all  copies  or  abstracts  of  records,  books  and 
archives  which  it  is  herein  agreed  may  be  made  shall  be  borne 
equally  by  said  two  States. 

II. 

And  this  Commission  further  agrees  that  the  two  Commissions 
composing  the  same  shall  recommend  to  their  respective  Conventions 
for  adoption  as  a  part  of  the  Schedule  of  the  proposed  Constitution 
for  the  State  of  North  Dakota,  and  the  State  of  South  Dakota,  re- 
spectively, the  following,  that  is  to  say: 

"The  agreement  made  by  the  Joint  Commission  of  the  Con- 
stitutional Conventions  of  North  and  South  Dakota  concerning  the 
records,  books,  and  archives  of  the  Territory  of  Dakota  is  hereby 
ratified  and  confirmed  which  agreement  is  in  the  following  words, 
that  is  to  say."  (And  then  shall  follow  the  words  of  the  Aritcle 
last  above  written.) 

In  tesitmony  and  confirmation  whereof,  the  said  Joint  Com- 
mission, now  assembled  and  acting  as  such,  has  caused  this  agree- 
ment to  be  signed  and  executed  by  and  on  its  behalf  and  as  its 
acting  deed,  and  witnessed  by  the  names  hereto  by  each  subscribed 
and  the  members  comprising  said  Joint  Commission  as  hereinbefore 
cited. 

Done  at  Bismarck,  Dakota,  this  I3st  day  of  July,  A.  D.,  1889. 

A.  G.  KELLAM, 
HENRY  NEIL, 
W.  ELLIOTT, 
S.  F.  BROTT, 
BURLEIGH  F.  SPALDIXG, 
ANDREW  SANDAGER, 
HARVEY  HARRIS, 

V.  T.  McGlLLYCUDDY, 

E.  W.  CALDWELL, 
CHARLES  H.  PRICE, 
E.  W.  CAMP, 
ALEX  GRIGGS, 
W.  E.  PURCELL, 
JOHN  W.  SCOTT. 

Mr.  Kellam:     Shall  the  report  be  read? 

The  President:     You  are  the  better  judge  than  I. 

Mr.  Kellam:  I  do  not  care  about  it  myself  only  that  it  lias 
been  properly  presented  in  Convention  so  there  will  be  no  violation 
of  propriety. 

Mr.  Lee:     I  think  it  would  be  well  to  hear  part  of  it  read. 

Mr.    Caldwell:     There   will    neeessarilv    be   considerable    time 


418  SOUTH  DAKOTA  DEBATES,  1889 

consumed  in  consideration  of  the  several  points  in  this  agreement 
and  this  would  carry  this  session  through  to  a  later  hour  than  I  be- 
lieve those  members  of  the  Convention,  at  least  those  members  of 
the  Convention  who  have  just  returned  from  Bismarck,  without 
having  had  any  sleep  within  the  last  thirty-six  hours  would  care  to 
remain  here.  I  would  therefore  move  you  that  this  report  be  re- 
ported as  received  and  that  the  reading  be  postponed  until  tomorrow 
morning. 

This  motion  received  a  second. 

Mr.  Caldwell:  I  would  say  in  connection  with  this  fact  that 
tomorrow  morning's  Press  will  contain  a  complete  copy  of  this 
and  members  of  the  Convention  will  have  an  apportunity  to  read 
it  and  understand  it  more  completely  than  would  be  the  case  by 
hearing  it  read. 

Mr.  Peck:  It  will  appear  in  our  Journal  tomorrow  morning 
will  it  not? 

The  President:  Those  favoring  the  receiving  of  the  report  of 
the  Joint  Commission  this  evening  and  postponing  the  reading  of 
the  same  until  tomorrow  morning,  say  aye.  Those  opposed  say 
no.  The  ayes  appear  to  have  it ;  the  ayes  have  it  and  the  motion 
prevails. 

Mr.  Peck:  I  move  we  adjourn  until  nine  o'clock  tomorrow 
morning. 

Which  motion  prevailed  and  the  Convention  stood  adjourned. 
Hall  of  the  Constitutional  Convention,  Sioux  Falls,  Dakota,  August 
2nd,  1889. 

Convention  called  to  order  at  nine  o'clock  A.  M. 

President  Edgerton  in  the  chair. 

Prayer  by  Chaplain  Wakefield. 

We  marvel  to  ourselves,  O  God  our  Heavenly  Father  when  we 
consider  Thy  infinite  love  manifested  toward  us  We  come  before 
Thee  this  morning  to  thank  Thee  for  the  favorable  auspices  under 
which  we  meet  and  we  ask  Thee,  that  in  this,  our  closing  work  for 
the  great  commonwealth  that  we  represent  that  nothing  will  be 
done  that  will  mar  or  impede  the  future  peace  and  prosperity  of  our 
beloved  State. 

May  the  chief  desires  of  our  hearts  this  morning  be.  to  honor 
Thee  and  serve  our  fellowmen,  not  only  those  who  are  today  watch- 
ing the  progress  of  our  work,  but  those  who  are  to  follow  in  our 
footsteps. 

O  Lord,  give  us  this  spirit  this  morning,  we  ask  in  Jesus'  name. 
AMEN. 


JUNKET  TO  SPIRIT  LAKE  419 

The  President  The  clerk  will  read  the  Journal  of  the  pre- 
ceding day. 

The  Clerk  reads  the  Journal. 

Mr.  Spooner:  I  move  that  we  dispense  with  further  reading 
of  the  Journal. 

Which  motion  received  a  second. 

The  President:  It  is  moved  and  seconded  that  we  dispense 
with  further  reading  of  the  Journal.  Those  favoring  this  motion 
make  it  known  by  saying  aye.  The  ayes  have  it.  Further  read- 
ing of  the  Journal  is  dispensed  with. 

The  President:  I  suggest  to  the  Convention  that  I  have  a 
communication  here  this  morning  from  the,  Superintendent  of  the 
Burlington  Railroad,  which  the  Clerk  will  read  to  the  Convention. 
I  thoughtlessly  ommitted  it  last  night  and  it  would  be  proper  for 
the  Convention  to  take  some  action  one  way  or  the  other  at  once. 
Either  by  accepting  or  refusing  to  accept  it  or  to  refer  it  to  a  Com- 
mittee so  that  something  can  be  done  with  this. 

The  Clerk  reads  the  communication  as  follows: 

Sioux  Falls,  Dak.,  Aug.  1,  '89. 
HON.  A.  J.  EDGERTON, 

President  Constitutional  Convention. 

On  behalf  of  the  management  of  the  Burlington,  Cedar  Rapids 
and  Northern  Railway,  I  extend  to  you  and  the  members  of  the 
Constitutional  Convention  and  their  laides,  the  courtesy  of  our  road 
from  Sioux  Falls  to  Spirit  Lake  and  return. 

Yours  most  respectfully, 

THOS.  H.  BROWN. 

The  President:  What  will  the  Convention  do  with  the  com- 
munication? 

Mr.  Davies:  I  move  that  the  invitation  that  was  extended  to 
the  Convention  be  accepted  for  Saturday  evening. 

Motion  received  a  second. 

The  President:  It  is  moved  and  seconded  that  we  accept  t he- 
invitation  of  the  Burlington  Railway  Co.  for  Saturday  evening. 
Those  favoring  the  motion  make  it  known  by  saying  aye;  there 
opposed,  if  any,  by  sayng  no.  The  ayes  have  it  and  the  motion 
prevails. 

The  President :      I  would  suggest  to  the  Convention  still  further  ; 
this  morning  I  met  with  the  Senate. Committee  sent  out  1.- 
examine  the  question  of  irrigation,  Senators  Stewart  and  K 
They  informed  me  that  they  could  only  spend  the  day  in  Sioux 


420  SOUTH  DAKOTA  DEBATES,   1889 

Falls,  they  would  be  glad  to  meet  a  few  gentlemen  from  the  Con- 
vention, not  many  but  a  few  gentlemen  from  localities  scattered 
over  South  Dakota  who  could  give  them  some  information  in  ref- 
erence to  this  question  that  they  might  embody  it  in  their  report 
and  if  convenient  to  this  Convention  they  would  meet  us  here  at 
two  o'clock  this  afternoon.  I  said  to  them  that  undoubtedly  the 
Convention  would  be  glad  to  accept  of  their  proposition  and  that 
seven  or  eight  gentlemen  would  be  selected  in  some  manner  to  an- 
swer such  inquiries  as  they  might  suggest  and  present  such  infor- 
mation as  they  might  desire. 

Mr.  Spooner:     I  move  that  the  proposition  be  accepted. 

Which  motion  received  a  second. 

The  President:  It  is  moved  that  the  Convention  extend  to 
the  Senate  Committee  a  cordial  invitation  to  meet  us  here  this  after- 
noon at  two  o'clock.  Those  favoring  the  motion  make  it  known  by 
saying  aye ;  those  opposed  by  saying  no.  The  ayes  have  it  and  the 
motion  prevails. 

Mr.  Van  Buskirk:  I  move  that  a  committee  be  appointed  by 
the  Chair  in  accordance  with  his  suggestion. 

The  President :  It  is  moved  that  the  Chair  appoint  a  committee 
to  furnish  this  information  for  the  Senate  Committee.  Those 
favoring  the  motion  make  it  known  by  saying  aye ;  the  opposition 
by  saying  no.  The  motion  prevails. 

The  President:  I  would  state  to  the  Convention  that  I  have 
received  an  answer  to  the  memorial  in  reference  to  the  School  lands 
which  the  Clerk  will  read. 

Clerk  reads : 

Executive  Mansion,  July  9th. 

DEAR  SIR:  — 

I  am  directed  by  the  President  to  acknowledge  receipt  of  your 
letter  of  the  2nd  inst.,  enclosing  memorial  passed  by  the  Consti- 
tutional Convention,  both  of  which  have  been  referred  to  the  Secre- 
tary of  the  Interior. 

I  have  the  honor  to  remain, 

Very  respectfully, 

O.  L.  PRUVEN, 
Assistant  Secretary. 

The  President:  Unless  otherwise  "ordered  by  the  Convention 
I  will  direct  the  Secretary  to  read  the  list  of  Committees  to  ascertain 
what  reports  are  yet  to  be  made. 

The  Clerk:     The  Congressional  and  Legislative  Apportionment. 


ROUTINE  421 


The  Chairman:     The  report  is  read. 

Judiciary. 

The  Chairman:     No  further  report. 

Schedule. 

No  further  report. 

Name,  Boundaries  and  Seat  of  Government. 

No  further  report. 

State  County  and  Municipal  Indebtedness. 

No  further  report. 

Executive  and  Administrative. 

No  further  report. 

Legislative. 

No  further  report. 

Bill  of  Rights. 

No  further  report. 

Election  and  Suffrage. 

Nothing  more. 

Federal  Relations. 

No  further  report. 

Educat  on  and  School  Lands. 

No   urther  report. 

Municipal   Corporations. 

No  further  report. 

Corporations  Other  than  Banking  and  Municipal. 

Nothing  further. 

County  and  Township  Organizations. 

Nothing  further. 

Revenue  and  Finance. 

No  further  report. 

Public  Accounts  and  Expenditures. 

Nothing  further. 

State  Institutions  and  Public  Buildings. 

No  further  report. 

Mines,  Mining  and  Water  Rights. 

Nothing  further. 

Roads,   Bridges  and  Other  Internal   Improvements. 

No  furthe    report. 

Exemptions. 

Nothing  further. 

Rights  of  Married  Women. 


422  SOUTH  DAKOTA  DEBATES,  1889 

Nothing  more. 

Banking  and  Currency. 

No  further  report. 

Military  Affairs. 

Nothing  further. 

Amendments  and  Revision  of  the  Constitution. 

No  further  report. 

Printing. 

Report  submitted. 

Seal. 

No  further  report. 

Miscellaneous  Subjects. 

Nothing. 

Compensation  of  Public  Officers. 

No  further  report. 

Arrangement  and  Phraseology. 

Will  report  this  afternoon  or  tomorrow. 

Manufactures  and  Agriculture. 

No  further  report. 

Expenses  of  the  Convention. 

Mr.  Huntley:  I  would  like  to  say  to  the  members  of  the  Con- 
vention that  I  hand  in  today  the  statement  and  if  they  find  any 
inaccuracy  that  they  will  report  it  to  the  Committee.  It  does  not 
agree  very  well.  Some  distances  traveled  are  nearly  one-sixth 
more.  It  is  the  desire  that  the  members  look  over  their  reports 
and  hand  them  to  the  Committee  and  if  they  find  any  error  that 
they  will  do  so  as  soon  as  it  may  be  done. 

Engressment  and  Enrollment. 

The  report  is  not  ready. 

The  President:  I  have  designated  this  Committee  to  meet 
the  Senatorial  Committee  at  two  o'clock  this  afternoon.  I  have, 
so  far  as  I  have  known,  tried  to  select  men  who  have  some  practical 
experience  with  the  question  of  irrigation.  The  Clerk  will  read  the 
list. 

.  The  Clerk  reads: 

Dr.  McGillicuddy,  of  Pennington;  Mr.  Peck,  of  Hamlin;  Dr. 
Spooner,  of  Kingsbury ;  Mr.  Couchman,  of  Walworth;  Mr.  Hall, 
of  Sulley;  Mr.  Houlton,  of  Douglass;  Mr.  Eddy,  of  Miner;  Mr. 
Murphy,  of  Hanson;  Mr.  Wood,  of  Spink;  Mr.  Cook,  of  Marshall; 
Mr.  Wescott,  of  Deuel. 


PUBLICATION  OF  DEBATES  423 

The  President:  The  next  order  of  buisness  will  be  the  com- 
munication and  presentation  of  petitions, — next  Unfinished  Busi- 
ness of  the  preceding  day, — reports  of  Standing  Committees ;  reports 
from  Select  Committees;  consideration  of  reports  of  select  Com- 
mittees ;  presentation  of  resolutions  and  propositions  relating  to  the 
%  Convention. 

Mr.  Jolley:     I  offer  the  following  resolution. 

RESOLVED:  That  the  president  of  the  Convention  have  the 
custody  of  the  debates  until  the  Legislature  shall  order  and  provide 
for  their  publication,  and  that  he,  with  Hon.  A.  G.  Kellam  and  Hon. 
II.  F.  Fellows,  shall  prepare  the  same  for  publication  and  cause  the 
same  to  be  published. 

The  President :  Is  the  Convention  ready  for  the  question  ?  As 
many  as  are  of  the  opinion  that  the  resolution  be  adopted,  say  aye; 
contrary  minded  say  no.  The  ayes  have  it  ;the  resolution  is  adopted. 

The  President:  The  next  business  in  order  will  be  the  con- 
sideration of  the  balance  of  the  report  of  the  Committee  on  Schedule, 
beginning  with  Sections  19  and  20. 

Mr.  Williams:  By  consent,  the  amendment  thac  was  offered 
by  myself  was  divided  into  two  parts  ;the  first  is  that  which  changes 
the  date  from  1892  to  1891  affecting  the  term  of  office  of  the  State 
officers  and  the  Legislature  and  that  which  affects  the  judges  I  wish 
to  withdraw  with  the  consent  of  a  second  and  of  the  Convention; 
the  question  before  the  House  is  that  which  changes  the  date  from 
1892  to  1891  and  effects  the  State  officers  and  members  of  the  Legis- 
lature making  the  term  of  office  of  the  members  of  the  Legislature 
expire  in  January,  1891. 

Mr.  Jolley:  This  question  I  do  not  think  is  a  very  material 
one ;  that  is  I  do  not  think  it  is  as  material  as  the  one  we  discussed 
last  Friday  afternoon ;  still  I  think  we  had  better  be  careful  how  we 
decide  this  question.  The  difficulty  originating  in  the  mind  of  the 
gentleman  from  Bon  Homme  and  those  who  view  the  muti- 
actly  as  he  does,  is  the  question  whether  this  is  an  election  under  this 
Constitution  or  not,  if  it  is  an  election  under  this  Constitution 
then  there  can  be  no  question  as  to  the  terms  of  the  State  officers. 
And  if  it  is  not  an  election  under  this  Constitution  I  donot  know  what 
kind  of  an  election  it  is.  The  question  is  dispursed,  (disposed  of)  that  is, 
(if  there  is)  any  doubt  if  we  look  at  what  this  Convention  has  done  al- 
ready relative  to  the  Schedule  report  and  if  the  members  will  turn  to 
Section  7  which  was  diccussed  fourteen  or  fifteen  hours  last  Kridav, 
they  will  find  a  pr«»vi>ii-n  which  jt-ts  thi.s  matter  at  rest.  "The 


424  SOUTH  DAKOTA  DEBATES,  1889 

election  herein  provided  for  shall  be  under  the  Constitution  here- 
with submitted."  There  can  be  no  question  about  that  language; 
it  is  plain  and  without  ambiguity.  And  the  Convention  last  Fri- 
day afternoon  decided  that  this  election  on  the  first  day  of  October 
shall  be  an  election  under  this  Constitution.  Now.  Mr.  President, 
if  that  is  correct,  then  the  conclusion  is  irresistable  that  this  being 
an  election  under  the  Constitution,  these  officers  are  provided  for 
under  the  Constitution;  and  the  Governor  and  State  officers  shall 
be  elected  for  two  years.  The  Omnibus  Bill  says  we  can  provide 
for  a  full  set  of  officers.  Then  where  do  we  get  any  other  provision 
for  electing  these  officers ;  there  is  not  a  single  word  as  to  what 
officers  we  shall  elect ;  not  a  single  provision  or  word  in  it  stated  as  to 
what  officers  we  shall  elect ;  then  it  comes  back  to  this  Constitution 
it  having  provided  that  such  and  such  officers  shall  be  elected; 
then  it  follows  as  a  conclusion  that  they  shall  be  elected  as  provided 
by  the  terms  of  this  Constitution  and  it  shall  govern.  There  is 
nothing  concerning  a  half  year  or  fourteen  months  or  twenty  months  ; 
the  Constitution  says  that  we  shall  have  such  and  such  officers  and 
that  same  Constitution  says  that  they  shall  be  elected  for  two  years ; 
then  if  the  Constitution  has  made  the  rule  that  this  first  election 
shall  be  under  the  Constitution  there  can  be  no  question  as  to  that. 
Then  Sir,  so  far  as  the  judicial  officers  are  concerned  there  is  no 
particular  ambiguity,  no  particular  doubt,  and  no  uncertainity ; 
the  Constitution  says  that  under  the  provisions  of  this  Constitution 
judges  shall  be  elected  who  shall  hold  office  for  four  years  after  the 
first  election;  that  election  is  under  the  Constitution  because  we 
cannot  under  any  provision  of  the  Organic  Act  elect  any  judges; 
we  must  act  under  the  Constitution.  In  the  proceedings  yesterday 
we  provided  such  and  such  judges  now  if  we  do  not  get  these  State 
officers  from  that  Constitution  we  do  not  get  them  any  place.  If  we 
elect  those  officers  and  those  judges  under  the  provisions  of  the 
Constitution  all  of  the  terms  provided  for  in  that  Constitution  must 
be  fully  carried  out.  It  is  that  Constitution  or  nothing. 

This  Schedule  is  a  very  important  thing  in  its  place,  but  after 
this  Constitution  is  adopted  and  we  are  admitted  as  ,a  State  into 
this  Union,  I  doubt  whether  a  person  will  say  anything  more  about 
this  Schedule.  This  is  a  bridge  to  carry  us  over  from  a  Territorial 
to  a  State  government;  only  that  and  nothing  more;  having  done 
its  work  it  ends  right  there.  Again  I  wish  to  call  the  attention  of 
the  Convention  to  this  fact ;  it  is  a  very  serious  legal  question.  There 


JOLLEY  ox  TENURE  42S 


may  be  complications  that  will  arise,  if  you  deviate  from  that  Con- 
stitution in  a  single  particular.  This  is  a  violent  presumption,  Mr. 
President,  but  I  will  make  the  assumption, — suppose  I  was  elected 
Governor  at  the  election  on  the  first  dav  of  October  1889  (laughter) 
and  that  you  go  to  work  and  amend  this  Schedule  as  provided  by 
this  amendment,  and  the  gentleman  is  elected  next  year;  the  first 
Tuesday  of  January  1891  he  comes  to  me  and  says,  "Here,  old  man 
Jolley,  your  time's  up,  walk!  I  say  "No  Sir,  Mr.  Williams,  the 
Constitution  that  the  people  adopted  on  the  first  day  of  October 
says  that  I  shall  hold  office  for  two  years ;  for  two  years  I  am  going 
to  remain  here  or  until  such  time  as  the  Supreme  Court  of  South 
Dakota  says  "Walk",  then  I  will  go  and  not  until  then."  This 
complication  is  not  far-fetched,  it  stares  us  in  the  face  and  we  a~e 
liable  to  meet  if  it  we  go  to  work  and  elect  a  man  governor, — if  you 
elect  me  Governor  for  two  years,  I  serve  my  time  out.  It  is  easily 
settled, — this  difficulty  ;  the  other  way  you  have  that  complication. 
The  logical  conclusion  is  that  we  elect  a  Governor,  no  doubt  about 
that;  we  shall  elect  that  Governor  for  two  years,  no  doubt  about 
that.  Now  this  Convention  goes  to  work  in  this  Schedule  and  says, 
we  shall  elect  for  fourteen  months,  if  the  amendment  is  adopted. 
Then  in  that  event  I  say  if  we  come  before  the  Supreme  Court,  the 
Supreme  Court  will  say  "You  have  said  in  Section  7  that  this  elec- 
tion is  an  election  under  the  provisions  of  this  Constitution ;  then 
the  provisions  of  this  Constitution  shall  govern  it  in  every  respect. 
There  is  no  question  in  my  mind  about  it,  Mr.  President,  gentlemen 
will  differ;  we  are  constituted  differently.  There  is  a  clear,  plain 
provision  in  the  Constitution  as  to  what  shall  be  the  terms  of  office 
and  when  we  leave  the  Constitution  we  are  at  sea. 

Mr.  Dickinson:  I  would  like  to  say  a  word  on  this  because 
I  have  a  good  deal  of  interest  in  it  and  on  the  side  of  those  who  have 
offered  the  amendment  that  is,  in  my  heart,  my  preference.  I  was 
a  member  of  the  Schedule  Committee  and  also  of  the  sub-commit  too 
who  passed  upon  this  provision  and  When  we  first  agreed  it  was  that 
the  terms  of  the  officers  should  be  a  short  term  and  that  there  should 
be  a  general  election  of  all  officers  in  1890.  I  was  satisfied  with  that 
and  gavo  very  little  attention  to  it  but  afterwards  when  the  other 
members  of  the  sub -committee  and  the  lawyers  and  myself  eanie  t<> 
the  conclusion  that  if  would  be  illegal  to  have  the  u-rin  t\v«> 
and  have  a  general  election  of  Male  off'u  ers  in  1891.  Again  I  op- 
posed it.  Then  I  gave  it  more  caivi'u!  i  onsidorati<.n  and  <  ame  to 


426  SOUTH  DAKOTA  DEBATES,  1889 

the  conclusion  for  the  time  being  that  they  were  right ;  it  would  have 
to  be  two  years'  terms  and  the  election  of  State  officers  in  the  odd 
year.  I  concurred  with  the  report  and  submitted  it  to  the  Conven- 
tion all  my  sympathies  are  with  the  other  side.  I  talk  on  this  side 
because  I  think  we  are  obliged  to  take  this  position.  The  terms 
"under  the  provision  of  the  Constitution"  and  the  term  "after  the 
admission  of  the  State  into  the  Union" ;  I  ask  the  closest  attention 
of  the  Convention  to  these  two  terms.  Unquestionably  these  terms 
are  used  in  the  Constitution  of  1885  "after  the  State  is  admitted 
into  the  Union."  It  provides  for  the  election  of  the  judges  and 
other  officers  at  the  first  election  held  under  the  Constitution  mani- 
festly they  intended  there  a  distinction  between  these  two  elections, 
election  under  the  provisions  of  the  Constitution,  and  the  first 
election  after  the  admission  of  the  State  into  the  Union.  The  ar- 
gument was  based  yesterday  on  the  division  of  these  terms,  that 
this  was  not  an  election  under  this  Constitution,  the  first  election 
after  the  admission  of  the  State  into  the  Union  would  be  an  election 
under  the  Constitution.  Mr.  President,  I  would  ask  the  Con- 
vention's attention  to  this.  What  was  meant  by  the  framers  of 
the  Constitution  of  1885  by  the  expression,  "under  the  provision 
of  this  Constitution?  They  said  that  the  Judges  should  be  elected 
under  the  provisions  of  the  Constitution ;  as  a  matter  of  history 
when  were  the  Judges  elected?  As  a  matter  of  history  when 
was  the  Constitution  voted  upon?  The  officers  were  elected 
then  so  when  the  Committee  was  appointed  to  call  the  election  they 
understood  that  the  first  election  was  the  election  that  the  Con- 
stitution was  voted  upon.  They  were  just  exactly  at  the  point  we 
are  today,  and  if  that  was  an  election  under  the  Constitution,  this 
is  an  election  under  the  Constitution  oh  the  first  of  October.  If  it 
is  not  an  election  under  the  Constitution  it  must  be  an  election 
under  the  election  law.  The  qualification  of  electors  provided  by 
the  Constitution  of  1885,  for  that  election  was  not  held, — the  first 
election  in  1885  was  not  held  under  its  provisions  but  under  the 
Territorial  law,  just  as  ours  will  be  this  fall.  But  it  was  an  election 
under  the  Constitution  in  this  sense  that  it  was  an  election  to  fill 
the  offices  for  which  the  Constitution  had  made  provisions ;  all  the 
State  offices  which  it  would  be  necessary  to  fill.  We  have  a  his- 
torical definition  of  what  an  election  under  the  Constitution  means 
that  they  had  contemplated  a  distinction  between  that  election 
and  the  first  election  after  the  State  had  been  admitted  into  the 


MR.  DICKINSON'S  VIEWS  427 

Union,  when  county  officers  are  to  be  elected.  You  will  see  at  once 
that  the  framers  of  the  Constitution  of  1885  undoubtedly  provided 
for  two  elections.  One  at  which  the  State  officers  and  judiciary 
should  be  elected  and  one  at  which  the  county  officers  should  be 
elected.  They  provided  for  those  elections.  I  say  to  the  members 
of  this  Constitutional  Convention  that  those  distinctions  are  matters 
of  history.  You  cannot  possibly  go  behind  them. 

Section  5  of  article  IX  refers  to  county  officers  the  question  also 
of  general  election  is  referred  to  in  Article  VII  Section  4  where  it 
says,  "All  general  elections  shall  be  bi-ennial".  I  ask  the  attention 
of  the  gentlemen  who  are  on  the  other  side  to  that  provision  of  that 
section.  What  is  meant  by  that  section  of  Article  VII  ?  "All  general 
elections  shall  be  bi-ennial  ?"  Is  it,  as  argued  by  the  gentleman  from 
Hand  last  night?  The  Convention  contemplated  a  general  election 
according  to  the  definition  which  says  for  convenience  it  shall  be 
understood  all  general  elections  shall  be  on  even  years.  Well,  will 
it  necessarily  follow  all  the  elections  shall  be  bi-ennial?.  It  would 
be  like  putting  in  a  section  saying  that  these  terms  shall  never  be 
less  than  two  years  because  according  to  that  definition  it  must 
come  on  even  years.  If  I  understand  it,  if  that  is  put  in  it  makes 
this  difficulty  possible,  that  when  the  even  year  comes  around  some- 
body would  say  this:  "This  is  the  general  election,  these  State 
officers  ought  to  be  elected  now  if  they  are  elected  on  the  odd  years 
therefore  they  put  in  this  section  providing  that  all  other  elections 
shall  be  bi-ennial.  And  that  State  elections  also  should  be  bi- 
ennial. They  should  come  on  the  odd  years.  I  deny  that:  You 
will  find  everywhere  there  is  that  provision  for  two  elections.  There 
is  not  a  member  on  the  floor  this  morning  that  doubts  that  if  the 
State  had  been  admitted  under  the  Sioux  Falls  Constitution  there 
would  have  been  an  election  of  State  officers  in  1885  and  following 
in  1887  there  would  have  been  another  election  of  State  officers  and 
in  the  even  year  there  would  have  been  an  election  of  county  officers. 
This  is  a  matter  of  history.  We  know  what  year  the  Constitution 
was  framed,  what  year  they  elected  their  first  officers  and  if  they 
had  been  admitted  we  know  what  year  they  would  have  gone  into 
office.  We  know  they  would  have  held  two  years  and  tin 
would  have  been  the  year  for  the  election  of  State  officers.  This 
prepares  the  way  for  an  argument  which  to  my  mind  is  com lusive 
in  this  matter  unquestionably.  The  Constitution  <.i  I.ss5  made  it 
necessary  that  there  shall  be  a  general  elcc  ti<>n  i-ai  h  \  tar  On  the 


428  SOUTH  DAKOTA  DEBATES,  1889 

odd  year  of  State  officers,  on  the  even  year  of  county  officers  and 
saying  that  it  makes  provision  for  it.  That  being  so,  we  have  a  pro- 
vision distinctly  made  for  two  elections  by  the  Constitution  that 
we  are  sitting  here  to  modify.  Now,  a  change  of  the  Constitution 
is  contemplated  by  the  amendment  offered.  To  adopt  that  is 
actually  to  change  the  Constitution;  it  is  surely  an  amendment  to 
the  Constitution ;  it  is  a  more  complete  change  and  radical  change  or 
amendment  of  the  Constitution  than  anything  that  has  been  before 
offered  here  since  the  Convention  has  been  in  session.  It  is  some- 
thing absolutely  beyond  our  power.  We  remember  that  every 
member  upon  this  floor  has  been  arguing  that  we  must  be  careful 
to  not  exceed  our  power. 

Mr.  Hartley  is  called  to  the  chair  by  the  President  at  this  point. 

Mr.  Dickinson:  You  will  provide  for  an  election  of  State  of- 
ficers on  the  even  years  and  you  would  provide  for  an  election  every 
once  in  two  years.  In  my  estimation  it  is  wrong.  I  would  be  glad 
to  have  it  the  other  way  but  we  have  no  power  to  change  it ;  it  is 
best  to  leave  it  to  the  Legislature.  It  is  not  the  office  of  the  Con- 
vention to  amend  the  Constitution  in  the  Schedule  and  that  is  just 
exactly  what  we  would  be  doing  if  we  adopted  this  amendment. 

Mr.  Woods  (of  Pennington):  I  do  not  desire  to  attempt  to 
add  much  to  what  has  been  already  said.  It  seems  to  me  some  o : 
objections  to  the  amendment  are  not  well  founded.  One  argument 
is  that  this  Convention  has  already  determined  that  this  coming 
election,  this  October  election,  is  under  the  Constitution.  Now  if 
we  have  so  determined  it,  it  would  be  crossing  the  bridge  before  we 
come  to  it.  In  the  first  place  we  have  not  the  authority  to  determine 
it.  In  the  second  place  we  take  issue  with  the  gentleman  that  we 
have  not  so  determined  it.  I  commence  at  the  beginning  of  Section 
7  of  the  Schedule  report. 

Mr.  Hole:  You  have  the  old  copy;  the  corrected  copy  is 
different. 

Mr.  Woods:  "The  election  provided  for  herein  shall  be  under 
the  provision  of  the  Constitution  herewith  submitted,  and  shall 
be  conducted  in  all  respects  as  elections  are  conducted  under  the 
general  laws  of  the  Territory  of  Dakota  except  as  herein  provided." 
I  was  not  aware  that  this  Convention  had  taken  this  action  but  even 
if  the  Convention  had  taken  that  action,  I  ask  it  now  for  the  benefit 
of  the  Convention  if  they  have  acted  wisely.  I  would  like  to 
have  this  election  held  under  the  provisions  of  that  Constitution 


TENURE  OF  OFFICE  429 

using  the  expression,  "Under  the  provisions  of  the  Constitution", 
does  not  strengthen  the  position  any.  The  election  is  held  and  our 
authority  for  calling  the  election  at  all  is  under  the  provision  of  the 
Omnibus  Bill  that  makes  the  rules  and  regulations  for  that  election. 
Now,  if  these  words  are  contained  in  the  Constitution  we  can 
adopt  that  so  the  election  will  be  held  under  the  rules  of  the  Con- 
stitution. 1  submit  this,  Mr.  President,  this  election  cannot  or 
will  not  be  under  the  Constitution.  Why  ?  Because  we  have  none, 
we  have  no  Constitution  as  yet ;  it  must  be  resubmitted  for  rati- 
fication on  the  first  day  of  October.  We  have  no  Constitution  under 
which  this  election  can  be  held;  none  whatever.  We  hold  the 
election,  then,  under  the  provisions  of  the  Omnibus  Bill ;  we  cannot 
hold  the  election  under  the  Constitution  because  we  have  none 
under  which  to  hold  it. 

What  is  the  term  of  office  for  the  Governor,  fixed  by  the  Con- 
stitution? Why  is  it  two  years?  Members  of  the  Legislature? 
Two  years.  To  illustrate;  if  this  section  is  held  under  the  Con- 
stitution and  they  execute  the  duties  of  their  office  under  the  Con- 
stitution,— and  of  course  they  will  have  to  qualify  under  it,  then 
we  will  have  two  regular  sessions  of  the  first  Legislature. 

Now  let  us  see  h'ow  we  make  this  out.  The  Schedule  and  Or- 
dinance provides  that  they  shall  hold  the  first  session  of  the  Legis- 
lature sometime  in  October,  the  third  Tuesday  of  October;  limited 
to  what  they  shall  do.  Then  the  regular  session  will-  take  place  in 
January,  hence  there  will  be  two  regular  sessions  of  the  Legislature 
under  the  Constitution. 

Mr.  Clay,  from  Jolley,  or  Jolley  from  Clay  (laughter)  illustrates 
the  difficulty  we  shall  encounter  by  supposing  he  should  be  elected 
Governor.  It  strikes  me,  one  year  or  a  little  over  would  be  sufhYient  - 
long  for  a  demonstration  of  that  character.  (Laughter).  I  do 
not  hesitate  to  say  that  it  would  be  sufficient.  (Laughter).  But 
this  is  a  departure;  the  Constitution  declares  that  the  general 
elections  are  bi-ennial.  At  the  time  that  the  Convention  of  1885 
assembled  there  was  a  law  upon  the  statute  books,  and  is  yet, 
defining  and  declaring  what  the  general  election  is.  At  that  time 
this  election  coming  upon  the  even  years.  That  Convention  was 
a  Convention  of  Dakotans ;  they  were  citizens  and  presumably 
familiar  with  that  provision  of  the  statutes.  It  is  not  for  us  to 
presume  that  the  Convention  did  not  use  the  words  "general"  in 
the  sense  in  which  it  was  used  in  the  statutes  of  the  Territory  at 


430  SOUTH  DAKOTA  DEBATES,  1889 

that  time  "the  general  election  shall  be  bi-ennial,  there  being  a 
statute. declaring  when  the  general  elections  should  be  held  and  what 
a  general  election  was.  They  used  the  term  "general  election"  in 
the  same  sense  that  the  Legislature  used  it.  If  that  is  true,  if  we 
presume  that  the  Constitutional  Convention  of  1885  acted  with 
reference  to  the  statute  of  the  Territory  in  putting  in  Section  7, 
referred  to  by  my  friend  from  Codington,  if  we  presume  that  they 
acted  with  reference  to  that  provision  of  the  statute,  then  we  can 
have  no  doubt  as  to  what  they  meant  by  using  the  term  "general 
election".  It  meant  an  election  falling  upon  the  even  numbered 
years ;  it  does  not  seem  to  me  that  we  should  presume  or  even  act 
on  the  presumption  that  the  Convention  of  1885  presumed  or  did 
so  foolish  a  thing ;  but  they  intended  to  do  reverence  to  the  customs 
of  the  Territory  and  they  used  that  expression  under,  and  in  the 
same  light  of  the  statute.  If  that  Constitution  declared  general 
elections  are  bi-ennial  and  if  we  can  find  the  use  of  the  word  general 
when  used  in  that  statute  then  general  elections  must  be  bi-ennial 
and  on  the  even  numbered  years  ;  then  if  we  now  should  provide  for 
the  election  of  these  State  officers  to  go  over  until  the  fall  of  1891 
we  would  have  a  general  election  on  an  odd  numbered  year.  In 
other  words  there  would  be  elected  officers  who  can  only  legally 
be  elected  at  a  general  election.  We  would  be  providing  for  their 
election  annually,  an  annual  election;  that  is  where  the  distinction 
lies.  The  Constitution  provides  with  reference  to  the  election  of 
certain  county  officers  that  they  shall  be  elected  at  the  first  general 
election  after  the  Constitution  takes  effect.  Very  well;  now,  this 
Constitution  will  probably  take  effect  during  the  year  1889,  we  will 
probably  be  in  the  Union  as  a  State  under  this  Constitution  before 
the  end  of  October  that  is  what  they  calculate  upon.  Then  f 
each  election  is  a  general  election  then  we  shall  elect  all  the  county 
officers  and  the  State  officers  in  full  in  November;  that  will  be  the 
first  general  election  under  the  Constitution  because  there  is  an 
election  in  November  and  we  make  it  a  general  election. 

I  think,  gentlemen  of  the  Convention,  you  can  see  that  every 
county  officer  elected  last  fall  for  two  years,  who  qualified  and  is  in 
possession  of  his  office,  would  question  your  authority  to  oust  him 
from  his  office  or  provide  for  an  election  to  fill  his  place  in  Novem- 
ber, 1889.  I  do  not  think  we  could  do  so  in  view  of  the  fact  that 
the  Constitution  has  provided  all  the  general  elections  shall  be 
bi-ennial.  Then  it  is  not  competent  for  us  to  change  the  election 


MR.  WOOD'S  OPINMON  431 

from  the  even  numbered  years  to  the  odd  numbered  years.  You 
have  no  right  to  cut  off  their  term  of  office.  It  would  lead  to  a 
chaotic  condition  of  affairs  and  unless  there  is  some  reason  for  this 
founded  in  argument  more  strongly  based  than  any  I  have  heard, 
I  thnik  we  had  better  not  provide  for  a  contingencey  of  that  kind. 
There  is  not  any  provision,  I  say,  contained  anywhere  for  our  doings 
here  or  for  acts  we  have  performed  except  those  found  in  the  Omnibus 
Bill.  That  being  so,  we  provide  for  holding  the  coming  election 
under  the  Omnibus  Bill  for  filling  the  office  of  Governor  under  the 
Constitution  and  any  Governor  elected  under  the  Constitution  his 
term  of  shall  be  two  years  and  if  elected  under  the  provisions  of 
the  Act  of  Congress,  that  fixes  his  term;  in  other  words  the  Consti- 
tution fixes  the  term  of  all  offices  under  the  Constitution  upon  com- 
ing into  the  Union  as  to  the  separation  of  the  question  here,  I 
desire  to  call  attention  of  the  Convention  briefly  to  some  provisions 
of  the  Constitution  in  reference  to  that.  In  Section  26  in  Miscel- 
laneous, under  Article  V  the  provision  is  that:  Sec.  26.  The 
Judges  of  the  Supreme  Court,  Circuit  Courts  and  County  Courts 
shall  be  chosen  at  the  first  election  held  under  the  provisions  of 
this  Constitution,  and  thereafter  as  provided  by  law,  and  the 
Legislature  may  provide  for  the  election  of  such  officers  on  a  dif- 
ferent day  from  that  on  which  an  election  is  held  for  any  other  pur- 
pose, and  may  for  the  purpose  of  making  such  provision,  extend 
or  abridge  the  term  of  office  for  any  of  such  judges  then  holding 
but  not  in  any  case  more  than  six  months.  The  term  of  office  of 
all  Judges  of  Circuits  Courts,  elected  in  the  several  judicial  circuits 
throughout  the  State,  shall  expire  on  the  same  day."  Their  terms 
of  office  are  fixed  by  acts  of  legislature;  they  may  shorten  up.  their 
terms  and  they  may  provide  for  an  election  at  a  different  time.  Of 
course  if  this  Constitution  is  ratified,  but  if  it  is  rejected,  no  matter 
how  many  different  officers  we  elect,  they  will  fall  with  the  Consti- 
tution—everything goes  down  with  it.  The  Legislature  has  the 
power  to  fix  a  different  election  time  for  the  Judges  and  they,  in 
so  doing,  cut  down  those  terms  fixed  upon.  The  Legislatu  e  may 
do  so,  then  so  far  as  the  Committee's  report  and  Section  19.  I  think 
the  figure  four  need  not  be  stricken  out  for  the  reason  that,  by  tak- 
ing off  six  months  from  the  tenure  of  office  the  Legislature  may 
provide,  and  it  seems  to  me  in  this  way  that  the  Let^islatuiv  will 
be  more  liable  to  provide  for  our  Judges  being  elected  on  a  <lr 
date  from  that  upon  which  any  other  ofti  'i-d  an«l  it 


432  SOUTH  DAKOTA  DEBATES,  1889 

to  me  if  we  can  induce  the  Legislature  to  provide  for  the  election 
at  a  different  time  than  that  upon  which  any  other  officer  is  elected, 
it  is  a  most  desirable  thing  to  do.  It  seems  to  me  that  the  Judges 
should  not  only  be  elected  on  a  different  date  but  that  they  should 
be  nominated  in  convention  at  which  no  other  officer  is  nominated, 
not  to  subject  the  judiciary  of  our  state  to  grow  into  political  con- 
vention and  rustle  in  the  barter  and  trade  common  in  such  gather- 
ings. Then  I  say  that  wisdom  directs  that  we  should  leave  the 
figure  four  in  the  report  in  the  section  as  the  Committee  have  made 
it ;  but  in  the  other  section  of  the  question  as  to  the  figure  two  com- 
ing out,  we  have  no  possible  authority  to  let  these  officers  hold 
until  1892  and  have  an  election  in  1891.  If  they  hold  until  1892 
they  should  hold  until  the  first  of  Jaunary  1893.  The  Constitution 
provides  the  general  elections  shall  be  bi-ennial.  But  gentlemen 
say,  we  shall  have  an  election  between  for  our  officers  because  they 
are  to  hold  each  year.  He  says  the  general  elections  shall  be  bi- 
ennial and  that  means  biennially  annual.  I  never  heard  that  con- 
struction contended  for  before.  Biennial  means,  in  fact  annually. 
The  election  shall  be  biennial  and  annual.  A  general  biennial 
election  and  that  annually.  It  don't  seem  that  construction,— 

Mr.  Davies,  of  Edmunds:  Mr.  President,  if  this  Convention 
has  committed  a  blunder  in  adopting  Section  7  of  the  Schedule,  that 
is  no  reason  why  we  should  now  continue  it  throughout  the  suc- 
ceeding sections.  Right  in  connection  with  what  the  last  speaker 
has  quoted  to  us  from  Section  24  of  the  Omnibus  Bill,  I  will  read 
only  a  few  lines: 

"That  the  Constitutional  Convention  may,  by  ordinance,  pro- 
vide for  the  election  of  officers  for  full  State  governments,  including 
members  of  the  Legislature  and  Representatives  in  the  Fifty-first 
Congress." 

And  reading  in  connection,  also,  with  that,  a  portion  of  Section 
8  of  the  Omnibus  Bill,  as  follows: 

"That  the  Constitutional  Convention  which  may  assemble  in 
South  Dakota  shall  provide  by  ordinance  for  re-submitting  the 
Sioux  Falls  Constitution  of  eighteen  hundred  and  eighty-five,  after 
having  amended  the  same  as  provided  in  Section  5  of  this  act,  to  the 
people  of  South  Dakota  for  ratification  or  rejection  at  an  election 
to  be  held  therein  on  the  first  Tuesday  in  October,  eighteen  hun- 
dred and  eighty-nine." 

Now,  the  honorable  and  Jolley  member  from  Clay,  asserts,  as 


MR.  DAVIES  VIEWS  433 


if  it  was  absolutely  so,  that  we  are  laboring  under  the  Constitution, 
but  where  is  the  argument  to  establish  that  assertion?  The  elec- 
tion of  next  October  is  authorized  right  here  in  thes  •  two  sections 
24  and  8  of  the  Enabling  Act.  Without  this  there  would  have  been 
no  election  this  fall,  and  there  is  nothing  in  the  Constitution  war- 
ranting or  authorizing  an  election  this  fall.  Now  then,  with  ref- 
erence to  the  two  expressions,  "under  the  provisions  of  the  Con- 
stitution and  "after  the  admission  of  the  State".  The  argument  n 
reference  to  those  two  statements  would  have  some  force  were  it 
not  for  the  fact  that  one  of  these  is  the  very  amendment  to  Section 
7,  which  section  a  large  proportion  of  this  Convention  voted  against. 
If  the  Convention  was  correct,  then  this  would  have  some  force  now, 
but  the  question  now  is,  are  we  correct?  Again,  as  to  the  historical 
argument  adduced  here;  that  in  analogy  fails.  Why?  Because 
the  state  of  things  existing  prior  to  the  Enabling  Act  have  no  bearing 
on  the  state  of  things  as  they  now  exist.  Suppose,  Sir,  for  the  sake 
of  this  argument — and  we  find  it  is  so — that  the  Enabling  Act  and 
the  Constitution  do  not  tally — that  there  is  a  conflict  of  authority 
between  the  two ;  then  which  shall  guide  us  ?  Suppose  for  a  moment 
that  the  Enabling  Act  and  the  Constitution  which  we  are  about  to 
adopt  conflict  with  reference  to  some  of  the  details  in  these  elec- 
tion matters.  Which  one  of  these  two  are  we  to  follow?  Which  is 
our  guide?  Who  for  a  moment  can  say  that  a  thing  which  shall 
come  into  existence  next  October,  provided  we  vote  for  it,  has 
greater  force  than  the  enactment  of  Congress  passed  some  long. 
time  ago  and  which  is  today  the  law  of  the  United  States?  The 
Constitution  which  we  shall  vote  for  next  October  is  not  yet  in 
existence,  as  has  already  been  said.  The  breath  of  life  will  not  be 
in  that  Constitution  until  next  October.  There  is  no  question 
but  what  we  shall  vote  for  it,  as  a  State,  but  it  is  that  continjit-ih  v 
that  exists.  The  situation  of  today  is  not  a  reality  ;  it  is  something 
which  we  i  re  going  to  make  a  reality  next  October;  and  I  don't  tee 
how  anyone  can  for  one  moment  say  that  that  has  binding  fon  c 
today  over  and  above  the  Enabling  Act  which  authorises  nn-i 
us  the  power,  and  without  which  we  would  have  no  election  next 
October. 

Now,  as  to  the  conveniences  resulting  from  the  two,  1  don't 
think  tin-  conveniences  are  what  will  govern  us  in  this  matter.      If 
that    point   is  settled,  which  can  be  determined  only  by  the  V 
this  Convention,  the  amendment   provides  far  the  settling  «'•"  these 


434  SOUTH  DAKOTA  DEBATES,  1889 

differences ;  it  brings  about  the  two  elections  on  the  same  year,  and 
on  the  even  numbered  years.  The  people  of  this  Territory  have 
already  decided  that  it  is  their  choice  that  we  should  not  have  elec- 
tions every  year,  but  the  provision  of  this  Constitution — of  this 
Schedule— is  now  that  we  shall  have  elections  every  year,  contrary 
to  the  expressed  wishes  of  the  people  of  both  North  and  South 
Dakota.  The  amendment  provides  for  putting  away  that  great 
objection.  It  is  an  objection  that  is  universal;  it  goes  right  down 
into  the  pocket  of  every  voter  and  every  property  holder  in  South 
Dakota,  and  this  is  one  reason  why  the  people  object  to  this  per- 
petual election  every  year,  not  only  for  the  expense  of  the  business, 
but  the  inconvenience  to  the  people  of  the  State.  It  seems  to  me 
that  the  amendment  disposes  of  that  objection  and  that  the  amend- 
ment is  grounded  both  upon  authority  and  law  and  that  the  or- 
iginal schedule  is  wide  of  both  of  these. 

I  will  not  take  more  of  your  time,  for  I  know  that  quite  a 
number  of  the  gentlemen  present  have  studied  this  question  and 
are  in  favor  of  this  amendment,  and  I  will  give  way  to  them. 

Mr.  Cal dwell,  of  Minnehaha:  I  understood,  Mr.  President,  by 
something  said  by  the  gentleman  from  Pennington,  that  there  was 
a  liklihood  of  the  statutory  definition  of  "general"  and  "annual" 
elections  cutting  some  figure  with  reference  to  the  question  in 
hand ;  and  if  this  is  to  be  the  case  it  may  be  well  for  the  Convention 
to  know  that  the  Territorial  statute  giving  a  definition  of  the  terms 
"general  election"  and  "annual  election"  has  been  repealed  some 
two  or  three  sessions  of  the  Legislature  ago.  There  is  not  now 
properly  upon  the  statute  books  of  this  Territory  any  law  under- 
taking to  give  a  definition  whereby  the  term  "general  elections" 
shall  have  any  reference  to  even-numbered  years,  or  the  term 
''annual  election"  to  odd-numbered  years.  It  is  a  fact  that  the 
statute  as  originally  enacted,  has  a  place  in  the  compiled  Laws  of 
this  Territory,  but  it  is  a  fact  that  it  was  placed  there  with  the 
expectation  of  having  it  specially  re-enacted  by  the  Legislature, 
in  order  that  there  might  be  this  distinction,  and  the  matter  was 
brought  to  the  attention  of  the  Legislature  last  winter,  but  it  went 
to  wreck.  The  act  asking  that  this  be  re-enacted  did  not  get  through 
nor  come  up  for  consideration.  So  I  simply  call  attention  to  the 
fact  that  there  is  no  Territorial  statute  giving  any  special  significa- 
tion to  the  term  "general  election". 

Mr.  Boucher,  of  McPherson:     Mr.  President,  on  that  question 


JUDGE  BOUCHER  ON  TENURE  435 

it  seems  to  me  that  the  Compiled  Laws  of  the  Terr  tory  of  Dakota 
as  they  have  been  published  and  approved,  will  be  the  best  au- 
thority that  we  can  have  upon  the  subject,  and  I  understand  there 
is  no  question  but  what  the  Compiled  Laws  of  the  Territory  — 
(Cries  of  "louder,  louder").  I  say  there  is  no  doubt  but  that  the 
Compiled  Laws  of  the  Territory  today  do  make  that  distinction; 
that  the  general  elections  are  the  elections  held  on  the  even-numbered 
years,  and  the  annual  elections  held  in  the  odd-numbered  years. 
Now,  where  the  gentleman  from  Minnehaha  gets  his  authority  for 
saying  that  that  is  not  the  law  of  the  land,  is  something  I  can't  see. 
It  is  his  authority  against  the  law  of  the  Territory  as  adopted 
and  approved  by  the  Governor. 

I  did  want  to  come  up  here  loaded,  but  these  gentlemen  who 
have  preceded  me  have  stolen  my  thunder.  However,  there  is  one 
thing  I  do  want  to  say  in  connection  with  the  remarks  made  by 
Mr.  Jolley  from  Clay.  He  bases  his  authority  that  this  election 
is  held  under  the  Constitution  from  the  language  found  in  Section 
7.  Now,  what  is  a  general  election?  If  I  understand  a  general 
election,  it  is  the  election  whereat  the  general  officers  of  the  State 
are  elected.  Now,  Section  20  of  this  Schedule  offsets  Section  7, 
because  it  says  that  the  first  general  election  under  the  provisions 
of  this  Constitution  shall  be  held  on  the  first  Tuesday  after  the  first 
Monday  in  November,  1890.  That  is  what  Section  20  says,  and  I 
say  that  that  is  right.  That  is  right.  The  first  general  election  that 
we  will  have  under  the  provisions  of  this  Constitution  will  be  in 
1890,  provided  this  Constitution  is  ratified  next  fall  and  provided 
the  President  sees  fit  to  issue  his  proclamation.  Thus  we  will  have 
an  election,  and  then  we  will  have  the  first  election  under  the  pro- 
visions of  the  Constitution.  This  election  is  the  bridge  that  takes 
us  over  until  the  first  election  under  the  Constitution  I  believe 
that  this  amendment  ought  to  carry.  We  certainly  have  a  right 
to  do  it ;  we  certainly  have  a  right  to  elect  our  provisional  State 
government  to  hold  over  until  the  first  general  election  under  the 
Constitution,  and  it  is  certainly  in  consonance  with  the  good  judg- 
ment of  the  whole  people  that  that  should  be  done. 

Mr.  Humphrey,  of  Faulk:  Mr.  President,  in  the  debate  on  this 
question  I  am  impressed  with  the  fact  that  has  confronted  us  from 
the  beginning,  that  we  are  a  body  of  seventy-five  people  deprived 
of  the  ordinary  soverign  power,  hedged  about  on  the  one  side  by 
the  Omnibus  Bill  and  on  the  other  side  by  the  Constitution,  and 


436  SOUTH  DAKOTA  DEBATES,  1889 

every  question  depends  upon  our  power,  and  not  upon  this  question 
whether  or  not  this  election  is  under  the  head  of  "general"  or 
"annual"  election.  I  am  surprised  that  those  who  compiled  the 
present  Territorial  law  inserted  in  that  volume  a  law  on  the  sup- 
position that  it  would  be  enacted  by  the  next  Legislature,  which 
I  don't  regard  that  as  material  to  the  question  before  us.  It  seen's 
to  turn  and  hinge  upon  the  question  whether  this  first  election,  on 
the  first  of  October,  is  under  the  Constitution  or  whether  it  is  under 
the  authority  of  the  Omnibus  Bill.  While  it  seems  to  me  clear  that 
it  is  under  the  authority  of  the  Omnibus  Bill,  in  one  sense  of  the 
word,  it  seems  to  me  clear  that  without  the  Constitution  it  would 
be  void  and  that  the  officers  we  elect  and  the  terms  for  which  they 
are  elected  are  void  and  without  effect  in  any  way  unless  the 
Constitution  is  adopted,  but  if  the  Constitution  is  adopted  they 
are  in  full  force.  If  that  is  not  true,  what  was  our  position 
in  1885?  We  had  no  Enabling  Act  at  all.  Would  anyone  hold 
that  those  officers  elected  at  that  time  were  not  elected  under  the 
Constitution?  Now,  I  am  free  to  confess  that  I  have  listened  to  the 
debate  from  beginning  to  end  without  deriving  information  there- 
from sufficient  to  cause  me  to  be  convinced,  one  way  or  the  other, 
and  therefore  in  this,  as  in  some  other  matters  before  the  question,  I 
I  find  it  necessary  to  do  what  I  think  best.  The  measure  being 
necessary,  or  whether  it  is  expedient  or  whether  it  is  consistent 
with  our  desires,  is  not  what  must  control  us  in  this  question.  It 
is  a  question  of  power,  and  if  it  is,  as  I  believe,  an  election  under 
the  Constitution,  the  officers  should  be  elected  for  the  terms  pre- 
scribed by  the  Constitution. 

Now,  in  the  year  1885 — that  was  one  of  the  years — the  gentle- 
men who  made  that  Constitution  provided  for  that  election,  and 
it  would  appear  to  be  an  intelligent  and  candid  interpretation  of 
the  Constitution  thus  made  by  those  who  provided  that  Comti 
tution,  to  say  that  they  did  provide  for  an  election  annually.  Now, 
some  object  to  that,  and  possibly  with  good  reasons,  but  that  is 
not  the  question ;  others  favor  it  for  what  they  believe  to  be  a  good 
reason,  but  that  is  not  the  question.  I  find  no  provision  in  the 
Omnibus  Bill  that  necessitates  an  amendment  of  the  Constitution 
relative  to  the  terms  of  the  officers  elected  thereunder,  and  unless 
we  can  find  it  we  have  no  right  to  change  those  terms ;  and,  as  much 
as  it  may  be  regretted,  it  does  seem  to  me  now  that  this  schedule 
Committee  have  compiled  the  Schedule  in  conformity  with  the  pro- 


QUALIFICATONS    OF  VOTERS 


visions  of  the  Constitution.  I  therefore  insist  upon  voting  for  the 
report  of  the  Schedule  Committee  as  it  now  stands. 

Mr.  Da  vies,  of  Edmunds:  Mr.  President,  I  would  like  to  ask 
one  question.  Under  the  provisions  of  our  laws  as  amended,  we  have 
one  qualification  for  voters,  and  under  this  new  Constitution  we 
have  another.  It  is,  I  think,  in  the  Constitution  ten  days,  and 
twenty  or  thirty  days  under  our  present  law.  If  the  question  comes 
up  —  if  some  one  is  challenged  at  the  election  next  October,  which 
law  shall  be  followed?  Is  there  any  question  but  what  the  law  of 
the  Territory,  as  amended,  would  govern  in  this  matter,  rather  than 
the  law  of  the  Constitution,  which  declares  that  a  man  need  only 
be  in  the  precinct  ten  days?  Now  here  is  one  question  that  comes 
r  ght  square  and  fair;  here  is  a  question  you  must  explain,  and  1 
will  simply  ask  now,  which  one  of  these  two  are  we  to  follow?  If 
not  under  the  Constitution,  then  it  so  something  else;  which  of  the 
two  is  it  ?  I  think  that  will  satisfy  the  question. 

Mr.  Humphrey,  of  Faulk:  As  I  understand  the  interpretation 
of  the  Constitution,  it  is  that  all  laws  of  the  Territory  are  in  force, 
except  as  modified  by  the  Constitution.  Consequently,  this  elec- 
tion being  held  under  the  Territorial  laws,  they  would  be  only  in 
force  in  regard  to  the  State  officers  we  have  no  Territorial  law  per- 
taining thereto  whatever.  Consequently,  the  procedure  of  the 
rules  and  regulations  in  the  election  for  the  adoption  of  the  Con- 
stitution are  in  no  manner  effected,  because  the  Constitution  is  the 
beginning  of  all  matters  pertaining  to  the  officers  and  their  terms 
under  the  Constitution.  We  come  in  contact  with  Territorial  laws 
here,  and  we  are  between  the  laws  and  the  Constitution.  \Vhilo 
we  as  a  body,  are  powerless  to  repeal  or  alter  any  Territorial  law. 
and  we  are  powerless  to  repeal  or  alter  the  Constitution,  if  there  is 
a  question  of  law  as  to  the  results,  it  is  a  question  for  the  courts 
and  not  for  us  to  determine. 

Mr.  Sterling,  of  Spink:  Mr.  President;  it  seems  to  me  like  a 
strange  construction  to  say  that  because  Section  7  provides,  and 
because  there  are  certain  provisions  in  the  Constitution  like  this: 
"The  election  provided  for  herein  shall  be  under  the  provisions  of 
the  Constitution  herewith  submitted"  —  I  say  it  si-mi*  to  me  like 
a  strange  and  a  narrow  const  rurt  ion.  in  <>ne  srnse,  to  say  that 
that^hall  pertain  not  only  to  the  election  provided  for  under  the 
Constitution  but  to  the  term  of  uftiei-  as  well,  of  any  ortii  er  pro- 
vided for  in  the  Constitution,  and  1  don't  believe  the  language 


438  SOUTH  DAKOTA  DEBATES,  1889 

warrants  any  such  construction.  I  think  that  in  a  sense  we  do 
elect  these  officers  under  the  provisions  of  the  Constitution,  in  this, 
that  we  elect  the  identical  officers  provided  for  in  the  Constitution ; 
and  it  cannot  be  said  that  because  the  language  is  that  the  election 
shall  be  as  under  the  provisions  of  the  Constitution  that  it  pertains 
to  the  term  of  office  of  the  officers  elected  under  this  provision.  It 
may  be,  and  I  believe  in  this  connection  it  would  be  construed  to 
apply  simply  to  the  officers  elected,  and  not  to  the  term  of  office. 
I  think  it  has  been  frequently  provided  in  Constitutions,  or  rather 
in  the  Schedules  and  Ordinances  of  Constitutions  adopted,  that  the 
elections  for  the  first  term,  or  the  elections  under  the  provisions 
of  the  Constitution  shall  be  for  the  shorter  term,  in  order  that  it 
may  be  at  the  general  election  as  theretofore  held  in  the  Territory, 
or  in  the  State  in  the  case  of  the  adoption  of  a  new  Constitution 
by  a  State.  That  is,  that  first  term,  under  the  Constitution  formed, 
or  under  a  new  Constitution,  is  regarded  in  many  cases  as  initiatory 
or  provisional,  and  if  general  elections  had  been  theretofore  held 
on  the  even-numbered  years,  the  first  terms  of  the  officers  were 
regulated  accordingly,  so  that  the  elections  thereafter  might  be  at 
the  even-numbered  year,  as  they  were  under  the  Territorial  form 
of  government,  or,  under  the  old  Constitution.  I  find  in  the  Con- 
stitution of  Nevada  that  it  is  provided  that  the  terms  of  the  State 
officers  shall  be  four  years,  and  I  find,  not  in  the  Constitution,  but 
in  the  Schedule  and  Ordinance  it  is  provided  that  the  first  term 
of  the  officers  shall  be  for  two  years,  and  so  I  think  that  with  that 
in  view,  it  is  compentent  for  this  Convention  to  say  in  the  Schedule 
and  Ordinance  that  the  election  for  the  first  term  may  be  for  a  shorter 
term,  in  order  that  it  may  conform  to  the  elections  as  theretofore 
held. 

Mr.  Dickinson,  of  Day:  Mr.  Sterling,  you  were  a  member  of 
the  Constitutional  Convention  of  1885. 

Mr.  Sterling,  of  Spink:     No,  Sir. 

Mr.  Dickinson,  of  Day:  I  will  ask  you  if  the  Constitutional 
Convention  of  1885  would  not  have  said  so,  if  they  intended  the 
first  to  be  the  short  term? 

Mr.  Sterling,  of  Spink:  I  don't  know  that  it  was  necessary  for 
them  to  have  said  so. 

Mr.  Dickinson,  of  Day:  Do  you  understand  that  the  first 
term  provided  for  was  the  short  term?  Were  they  elected  for  two 
years  each,  or  for  one  year? 


MR.  STERLING  ON  TENURE  OF  OFFICE  439 

Mr.  Sterling,  of  Spink:  I  think  they  were,  as  a  matter  of  fact, 
elected  for  two  years,  but  in  regard  to  the  gentleman's  construction 
of  the  term  biennial,  in  which  it  is  said  that  general  elections  shall 
be  biennial,  in  the  Constitution,  I  can't  answer  that  better  than  the 
gentleman  from  Pennington  did,  and  it  seems  to  me  ridiculous  to 
say  for  an  instant  that  all  general  elections  shall  be  biennial,  and 
at  the  same  time  make  provision  that  shall  make  all  general  elec- 
t'ons  annual,  or  giving  us  annual  elections,  as  it  would  accord 'ng 
to  the  gentleman's  construction.  I  think  it  is  plain  from  the  Con- 
stitution of  1885  that  they  did  have  the  general  election  in  view,  and 
I  think  so  from  another  reason  than  appears  from  the  face  of  the 
Constitution  itself.  It  provides  that  county  officers — at  the  first 
general  election  after  the  admission  of  the  State  into  the  Union, 
certain  county  officers  shall  be  elected.  Then,  whether  it  is  law 
now  or  not,  the  general  election  came  upon  the  even-numbered 
years.  They  .had  that  in  view  and  they  had  in  view  the  fact  that 
the  terms  of  the  county  officers  elected  under  the  Territorial  term 
would  expire  at  that  time,  so  that  the  election  would  come  at  that 
time,  and  that  is  evidence,  and  the  only  evidence,  of  what  hey 
considered  a  general  election,  namely  ;  the  election  that  should  come 
upon  the  even-numbered  years.  Arid  I  believe  that,  taking  the 
whole  thing  together,  that  in  connection  with  the  rest  of  the  Con- 
stitution, it  is  plain  that  they  meant  not  only  the  election  of  the 
county  officers,  but  the  election  of  State  officers,  as  well,  to  IK-  at  a 
general  election.  The  mere  fact  that  in  the  body  of  the  Constitu- 
tion, naming  these  different  State  officers,  it  is  provided  that  their 
terms  shall  be  so  long — two  or  four  years — I  tay  does  not  prevent 
us,  in  initiating  the  government,  to  limit  their  terms  so  that  their 
election  shall  come  at  a  general  election. 

In  conclusion,  let  me  say,  we  have  the  power  to  fix  the  tenure 
of  officers,  h'owever  elected,  for  the  power  to  elect  by  implication 
gives' us  the  power  to  fix  the  term;  the  greatest  always  includes  the 
lesser.  While"  we  cannot  fix  a  three-year  term,  we  may  fix  a  one 
year  term,  and  I  say  the  power  to  fix  and  provide  for  the  election 
of  the  State  officers  carries  with  it  necessarily  the  po\\er  to  provide 
for  the  tenure  of  office,  if  we  disire,  a  different  and  a  slu-rter  j 
than  the  period  fixed  in  the  Constitution.  \Ve  cannot  hold  this 
election,  under  the  Constitution;  it"  we  could,  there  would  l>e  no 
necessity  for  this  discussion;  the  Constitution  w..u!d  answer 
question  that  has  been  asked  here.  The  Constitution  provides  it 


440  SOUTH  DAKOTA  DEBATES,  1889 

shall  be  under  the  laws  of  the  Territory  according  to  this  provision. 
It  is  a  special  election  that  we  are  providing  for — not  a  general 
election  or  an  election  of  any  sort  except  a  special  election  under 
the  authority  of  the  Omnibus  Bill. 

Mr.  Van  Buskirk:  of  Codington:  Mr.  Chairman,  I  would  like 
to  say  just  one  word.  It  seemed  to  me  that,  so  far  as  this  declaration 
in  this  Section  7  was  concerned,  it  was  a  very  insane  thing,  because, 
how  we  can  hold  an  election  under  a  Constitution  wrhen  we  haven't 
got  any,  is  one  of  the  mysteries  I  am  not  able  to  solve.  Suppose,  if 
you  please,  which  is  not  likely  to  happen,  that  the  people  should 
not  adopt  this  Constitution  on  the  first  day  of  October;  could  you 
have  an  election  under  the  proivsions  of  a  Constitution  that  never 
had  any  existence?  We  all  know  that  neither  a  law  or  a  Constitu- 
tion can  speak  except  from  the  date  of  its  passage  or  adoption. 
No  law  of  this  Territory  can  speak  except  from  the  date  of  its  ad- 
option by  the  Legislature.  Suppose  a  man  should  do  an  act  which 
is  innocent  under  the  law  today,  and  suppose  a  week  from  today  a 
man  should  do  an  act  which  the  Legislature  in  the  meantime  has 
declared  criminal ;  could  you  convict  him?  Why  certainly  not.  It 
is  all  nonsense.  It  is  a  very  insane  provision.  You  might  as  well 
say  that  a  rose  is  a  tulip;  it  wouldn't  make  it  so.  The  gentleman 
from  Minnehaha,  who  was  one  of  the  compilers  of  our  law,  does  not 
suggest  to  you  that  that  law  was  not  in  force  in  1885.  We  all  know 
it  was  in  force  then,  and  so  it  would  not  signify  whether  it  was  in. 
force  today  or  not.  They  were  simply  using  the  language  of  the 
law  as  it  existed  at  that  time.  This  Constitution  has  not  now,  nor 
never  can  have  any  existence  until  the  people  adopt  it. 

Mr.  Dickinson,  of  Day:  Mr.  Chairman;  I  am  talking  against 
my  wishes  all  the  while  in  this  matter,  and  I  am  very  earnest  in  the 
matter  on  account  of  my  convictions  being  that  the  Constitution 
and  law  is  against  my  wishes.  It  seems  to  me  we  are  in  danger  of 
making  one  of  the  gravest  mistakes,  if  we  adopt  this  amendment. 
I  would  be  glad  to  see  the  substance  and  the  intent  of  that  amend- 
ment in  force,  but  I  believe  if  we  adopt  that  there  we  shall  make  a 
great  and  grave  and  ser'pus  mistake,  wThich  we  shall  be  held  ac- 
countable for.  With  all  respect  for  the  legal  learning  of  these 
gentlemen  in  this  matter,  I  can't  understand  how  they  arrive  at 
such  a  construction  of  this  Constitution; — an  election  in  which 
the  Constitution  was  voted  upon  at  the  same  time  that  they  voted 
for  State  officers ;  and  I  maintain  that  bv  an  election  under  this 


MR.  VAN  BUSKIRK  SPEAKS  441 

Constitution  is  simply  meant  this— it  was  an  election  to  fill  the  of- 
fices for  which  the  Constitution  made  provision.  The  Constitution 
provided  for  the  election  of  a  Governor,  a  Lieutenant  Governor; 
it  provided  for  the  whole  list  of  State  officers,  and  the  whole  list 
were  elected.  It  was  in  that  sense  a  general  election.  It  was  a 
matter  of  history  that  they  so  called  it  and  they  held  such  an  elec- 
tion and  elected  such  officers,  and  it  seems  to  me  we  cannot  get 
behind  that  definition,  which  is  a  matter  of  record  and  not  a  matter 
of  guess.  There  is  one  other  point  that  it  seems  to  me  these  speak- 
ers have  evaded,  and  that  is  this  question:  If  you  adopt  that 
amendment  and  make  your  elections  once  in  two  years,  is  that  a 
virtual  amendment  of  the  Constitution,  or  is  it  not?  That  is  a 
simple  question.  There  can  be  no  question  but  that  the  Con- 
stitution of  1885  provided  for  two  elections.  There  is  an  older 
definition  of  the  term  "general  election";  there  is  a  definition  of 
"general"  and  "general  election"  which  makes  it  to  mean  an  election 
which  is  general  in  its  cause  and  effect ;  not  merely  as  to  State  of- 
ficers. Each  of  these  elections  may  be  biennial — every  two  years, 
upon  the  odd  year ;  every  two  years,  upon  the  even  year.  But  is  this 
an  amendment  to  the  Constitution,  or  is  it  not?  The  Constitu- 
tion provides  for  an  election  every  year.  By  this  amendment  you 
will  make  this  election  come  once  in  every  two  years,  and  I  would  like 
to  see  it,  but  the  question  is,  friends,  is  it  right  ?  Have  we  the  right 
to  do  it,  or  shall  we  leave  it  for  the  Legislature  to  submit  an  amend- 
ment to  that  effect? 

t<f\  Mr.  Wood,  of  Pennington:  If  we  are  empowered  in  this  to 
provide  for  the  election  of  certain  officers,  have  we  not  the  power 
by  necessary  implication,  to  fix  the  tenure  of  those  officers  it'  \vc 
fix  it  less  than  that  provided  for  in  the  Constitution? 

Mr.  Dickinson,  of  Day:     It  seems  to  me  if  we  follow  the  otli- 
provided  for  in  the  Constitution,  we  must  follow  it  for  the  terms 
provided  for  in  the  Constitution. 

Mr.  Van  Buskirk,  of  Codington:  \Vhy  can't  we  make  it  throe 
years  instead  of  less  ? 

Mr.  Dickinson,  of  Day:  Make  it  just  what  the  Const  ti:t:«-n 
provides. 

Mr.  Willis,  of  Aurora:  Mr.  I'residint;  I  feel  I  have  realised 
that  point  where  I  have  ac  quired  tin-  requisite  legal  mt<>nnati«>n 
which  will  enable  me  to  vote  intelligently  upon  this  subject  My 
'mpres-sinn  is  that  this  would  be  a  good  time  to  take  a  VOte  ! 


442  SOUTH  DAKOTA  DEBATES,  1889 

to  feel  that  the  atmosphere  is  charged  with  the  sentiment  upon  the 
part  of  the  majority  in  favor  of  the  amendment.  There  are  sev- 
eral points  that  have  been  made  here  that  lead  me  to  this  conviction 
in  favor  o;  the  amendment.  One  of  them  is  the  knowledge  that  we 
are  a  BRIDGE!  It  is  a  fine  figure,  and  I  think  it  is  a  figure  that 
represents  a  fine  fact.  We  are  a  special  body,  for  that  special 
purpose.  I  1  ke  this  provisional  idea  that  is  suggested.  We  are 
to  make  a  PROVISIONAL  PROVISION!  A  conditional  provision  for 
the  adoption  and  the  assumption  of  all  the  effects  and  functions 
of  statehood.  We  are  to  provide  for  the  setting-up  of  a  regular  and 
orderly  statehood  housekeeping.  And  I  like  this  idea  that  we  are 
a  bridge,  and  we  are  a  special  body  and  that  we  have  no  special' 
powers,  which  leads  us  and  others  to  the  conclusion  that  we  have 
the  authority  for  the  adoption  of  the  amendment.  And  way  back 
of  that,  the  reason  that  has  been  so  spoken  of  here — a  sentiment 
that  comes  from  my  neck  of  the  woods,  namely;  a  feeling  that  if 
expressed  would  say,  "From  the  abominations  and  distractions 
and  the  demoralization  usually  attendant  upon  a  general  election, 
good  Lood  deliver  us  just  as  much  as  possible."  Let  tis  be  delivered 
from  the  demoralization  and  from  the  extra  expense,  if  we  have  a 
real  substance  or  authority  for  it,  by  the  adoption  of  the  amendment 
— the  extra  expense  and  demoralizations  of  annual  elections.  Give 
us  only  biennial  elections. 

Now,  I  hope  that  either  the  vote  will  be  taken  right  now,  while 
I  think  the  majority  feeling  is  in  favor  of  the  amendment,  or  that, 
if  the  discussion  proceeds,  that  a  vote  will  be  taken  right  after  some 
lawyer  makes  a  strong  speech  in  favor  of  the  amendment!  I  wrant 
you  to  take  in  viewr  this  fact,  that  preachers  and  those  having  the 
political  proclivities  of  my  friend  from  Pennington,  have  no  political 
roads  to  run,  and  we  are  trying  to  cct  in  the  best  interests  of  the 
greatest  number.  I  hope  the  vote  will  be  taken 

Mr.  Hole,  of  Beadle:  Mr.  Chairman;  before  this  vote  is  taken 
I  want  to,  in  a  brief  way,  show  how  we  arrived  at  these  conclusions, 
but  before  branching  on  that  theme,  I  wish  to  say  that  my  friend 
wrho  has  just  preceded  me  has  a  wrong  idea  of  our  duties  We 
should  first  learn  what  our  powers  are,  and  second,  if  there  is  any 
possible  question  of  power,  take  that  side  on  wrhich  there  is  none — 
not  attempt  to  build  ourselves  up  or  to  build  our  opinions  up -by 
some  fine-spun  theory  of  law  to  support  a  prejudice  or  wish,  but 
rather  go  back  and  study  the  facts— our  powers — and  if  there  is 


MR.  HOLE'S  FURTHER  VIEWS  443 

doubt,    go  on  the   safe  side.      The   Constitution    has    pointed    a 
course,    and,   while   there   is  a    fine-spun  theory  that  we  cannot 
elect     under    the    Constitution,  I  think,    gentlemen,    when    con- 
sidered, you  will  see  that  we  can.    This   election,  if   not   under 
the    Constitution,    is  nothing.       If   that    Constitution     falls,    the 
election  is  nothing.     The  only  other  possible  source  of  power  is 
the  Omnibus  Bill.     The  Omnibus  Bill  don't    provide  for   any  term 
of  years  or  any  salary.     It  says  you  may  on  the  first  day  of  Oc- 
tober have  an  election.     You  don't  even  have  to  have  the  election 
at    that   time,   unless    you   wish   to.       Now,    we    will  start  back 
with  the  original  Constitution    made    here    in    1885.      The    Con- 
stitution was  made  in  1885  and  there  was   an   election  held  the 
following  fall.  Was  that  a  provisional  election?     In  the  Schedule  and 
Ordinance  as  provided  for  in  1885  it  does  not  state  the  term  of  of- 
fice of  anything  of  the  kind.     The  officers  were  elected  under  the 
provisions  of  the  Constitution.     The  election  of  Governor  Mellette 
and  other  officers  elected  at  that  time  was  for  two  years.     Their 
construction  of  it  was  biennial,  which  was  a  general  election.     They 
were  elected  under  the  Constitution  of  1885  and  to  hold  to  1887,  and 
again  in  1887  they  would  have  another  election,  and  the  officers 
then  elected  would  hold  to  1889,  and  then  our  election  would  have 
come  in  November,  1889,  if  it  had  not  been  for  the  Omnibus  Bill, 
which  gives  us  the  authority  to  hold  our  election  in  October.    There 
is  not  a  question  but  what  that  was  intended ;  there  is  not  a  question 
but  what  the  Supreme  Court  was  elected  for  the  full  term,  as  pro- 
vided in  that  Constitution.     The  Schedule  nowhere  ind  cates  any 
other  term  or  kind,  and  I  think  anything  short  of  this  will  be  in 
the  nature  of  an  amendment  to  the  Constitution.     We  voted  on 
this  in  May,  and  we  must  stand  right  to  the  text,  whieh  is  provided 
in  the  Omnibus  Bill.     This  Omnibus  Bill  nowhere  provides  t 
such  change  as  this.     Does  that  provide  that  we  can  change  the 
Constiuttion  and  have  it  read  one  year  and  three  months,  or  any- 
thing of  that  kind?     It  doesn't  do  it.     Then  where  do  we  get  the 
power,  unless  we  assume  it?     I  take  it,  if  \ve  assume  that  po\\vr  \ve 
amend  the  Constitution.     The  Omnibus   Hill  says  we  must  elect 
officers  as  provided  for  in  the  Constitution.      Now.  if  we  don '1  -follow 
that  law  we  amend  the  Constitution,  which  is  unsafe  and  danger,  .us. 

Mr.  Sherwood,  of  Clark:     When  would  the  general  election  bava 
occurred  under  the  Constitution  <>t  1885? 

M,-.   Hole,  of  Beadle!     There  w*s  two  i  provided  m 


444  SOUTH  DAKOTA  DEBATES,  1889 

1885,  and  there  was  one  provided,  and  it  was  held,  and  it  would  have 
been  valid  for  all  purposes  if  we  had  been  admitted,  and  there  was 
another  election  provided  for  in  1887.  There  were  no  conditions 
in  the  Schedule — no  provisions  for  any  provisional  government. 
The  officers  were  elected  for  the  two  years  and  the  four. years. 
That  was  regarded  as  the  first  election  under  the  Constitution. 

Mr.  Wood,  of  Pennington:  Let  me  ask  you,  if  we  adopt  the 
report  of  the  Committee,  then  will  we  necessarily  have  to  elect 
sheriffs,  treasurer's  and  other  county  officers  at  the  election  in 
November,  1889? 

Mr.  Hole,  of  Beadle:  I  was  just  going  to  answer  that  question. 
The  Constitution  provides  that  at  the  first  election  certain  officers 
shall  be  elected.  Now,  that  election  was  in  November,  1885.  They 
held  for  the  two  years.  Now,  a  little  further  along  the  Constitution 
provides — when  it  comes  to  county  officers  it  makes  another  pro- 
vision, and  it  says  at  the  first  general  election  after  the  admission 
of  South  Dakota  into  the  Union.  Now,  we  all  know  that  they  in- 
tended that  the  Territorial  officers  should  hold  until  the  next  fall  — 
the  county  officers,  until  the  fall  of  1886.  They  elected  their  of- 
ficers and  were  all  ready  to  put  the  machinery  in  motion,  and  ex- 
pected to  do  that  between  the  first  day  of  December  and  February 
following.  During  that  winter  sometime  they  intended  to  be  ad- 
mitted— 

Mr.  "Wood,  of  Pennington:  How  is  it  about  our  members  of 
Congress ;  will  we  not  necessarily  have  to  elect  again  in  the  fall 
of  1890  two  members  of  Congress? 

Mr.  Jolley,  of  Clay:  That  is  provided  for  by  the  United  States 
law. 

Mr.  Hole,  of  Beadle:  That  is  not  necessary  for  us  to  discuss 
here.  That  is  provided  for.  We  can  get  at  that. 

They  held  their  election  for  State  officers  in  1885.  The  inten- 
tion was  to  hold  the  next  election  the  next  fall.  They  say,  when  they 
come  to  speak  of  county  officers  wrhich  the  Territorial  law  provided 
for,  that  they  shall  be  elected  at  the  first  election  after  the  admission 
of  South  Dakota.  Well,  their  term  of  office  expired  on  the  next 
year — on  the  even  year — and  it  provides  they  should  be  elected 
that  year;  and  I  think  when  you  come  to  discuss  this  matter  and  to 
consider  the  history  of  this,  there  is  no  question  but  what  there 
were  two  elections  provided  for;  and  the  word  "biennial" — you  can 
speak  of  that  as  ridiculous,  but  it  is  not.  The  tenure  of  the  offic 


FURTHER  VIEWS  ox  TENURE  445 

shall  be  biennial, — both  State  and  County.  The  tenure  of  the  Stau- 
officers  was  to  commence  on  the  odd  year.  They  were  elected  in 
odd  years  and  there  is  no  provision  in  the  Schedule  to  level  that 
up.  Then  there  was  intended  right  along  a  biennial  election  for 
the  State  officers,  and  that  was  to  be  on  the  odd  years.  And  for 
the  election  of  county  officers,  it  was  also  there  provided  that  it 
should  come  on  the  even  years,  and  the  elections  on  that  should  be 
biennial. 

Mr.  Van  Buskirk,  of  Codington:  Will  you  advise  us  when  the 
terms  of  the  members  of  the  Legislature  and  the  State  officers  begin 
under  the  Constitution? 

Mr.  Hole,  of  Beadle:  Under  the  Omnibus  Bill  we  have  our 
election  in  October  and  the  members  of  the  Legislature  meet 
directly  afterwards  to  do  certain  duties,  but  the  furctiors  of  their 
office,  as  law-makers,  does  not  commence  until  after  we  are  admitted. 
There  is  a  confliction  there  between  the  Constitution  and  the  Omni- 
bus Bill. 

Mr.  Van  Buskirk,  of  Codington:  Do  they  not  exercise  the 
functions  of  a  Legislature? 

Mr.  Hole,  of  Beadle:  They  do,  under  the  Omnibus  Bill,  but 
no  further. 

Now,  gentlemen,  I  like  this  idea  of  a  bridge,  too.  I  think  it 
i  a  pretty  thing,  but  let  us  not  bridge  or  trench.  Let  us  do  what 
is  intended  to  be  done,  and  if  we  have  a  creek  that  is  only  ten  feet 
wide,  let  us  build  a  ten-foot  bridge,  but  not  a  two-months  bridge. 
You  could  make  this  bridge  unwieldy  and  cumbersome,  but  let 
us  bridge  just  what-the  people  who  have  sent  us  here  want  us  to  do. 
It  is  always  a  pleasant  thing  to  feel  that  you  have  power,  but  let 
us  not  do  an  unsafe  thing  here. 

Mr.  Sterling,  of  Spink:  Do  you  think  the  election  as  provided 
for  in  the  Schedule  and  Ordinance  of  1885  is  any  imluation  of  our 
power  at  all? 

Mr.  Hole,  of  Beadle:      It  is  a  i  in  umstam  c-  that  shows  how  they 
interpreted    the    Constitution.     We   have   the   same   ConMitutmn 
now,  exactly.     The  Enabling  Act  gives  us  no  power  to  cham;e  that. 
It  does  not  say  we  shall  elect  the  Governor  and  State  «>tVui 
any  other  time-  than  the-  two  years  retem-d  to.     Tin-  ^entlenia: 
IVnnington  says   the  greater  includes  the  less  ami   the   |><>v 
elect  gives  some  other  powers,  but  it"  that  is  so  ami  wr  .  an  - 
the  term  and  all  that,  we  ran  change  the  salary.  WCCWJ  .  han;;e  their 


446  SOUTH  DAKOTA  DEBATES,  1889 

age  and  the  color  of  their  hair!  It  is  ridiculous  to  take  that  posi- 
tion. We  can  elect  the  officer  as  provided  for  in  the  Constitution, 
and  nothing  else,  and  anything  contrary  to  that  will  lead  us  to  end- 
less confusion  and  possibly  to  endless  litigation.  Now,  I  think  the 
better  feeling  of  the  Convention  is  that  if  there  are  two  ways,  one 
which  is  safe  and  one  in  which  there  is  a  possibility  of  a  doubt,  take 
that  course,  even  though  you  don't  want  to.  This  can  be  corrected 
by  an  amendment  and  can  be  corrected  at  any  time,  and  my  idea  is 
to  correct  that. 

Mr.  "Wood,  of  Pennington:  Then  you  conclude,  as  I  understand 
it,  that  Sheriffs  and  the  like  must  be  elected  in  November  (October?) , 
1889? 

Mr.  Hole,  of  Beadle:  No,  Sir;  I  just  said  they  should  not.  I 
think  I  have  explained  that— that  we  were  following  out  the  inter- 
pretation as  made  by  the  framers  of  the  Constitution  of.  1885.  They 
intended  to  hold  their  elections  on  the  even  years.  We  will  be 
admitted  this  winter  and  we  will  hold  the  election  as  provided  under 
the  Constitution,  and  the  Constitution  clearly  and  expressly  pro- 
vides for  two  election?,  and  there  we  get  the  two  elections.  There 
is  no  possible  confliction  of  doubt  in  that.  I  think  this  is  unsafe; 
we  might  make  up  various  arrangements;  we  might  make  the 
Schedule  entirely  different.  I  don't  think  it  is  the  time  now  to 
experiment.  Let  us  take  the  plain  course,  indicated  in  the  Con- 
stitution and  we  will  be  safe. 

Mr.  Huntley,  of  Jerauld:  Mr.  Chairman ;  I  simply  want.to  say 
a  word.  Some  gentleman  has  asked  in  regard  to  the  views  of  the 
Committee  of  1885  that  framed  the  Schedule.  I  wish  to  say,  as  a 
member  of  the  Committee,  that  there  was  no  such  dispute  as  this 
arose  in  that  Committee  at  all.  It  was  the  intention  of  the  Com- 
mittee to  make  the  elections  biennial  and  not  every  year.  I  think 
that  is  what  every  member  of  the  Schedule  understood  and  thought 
they  were  doing.  I  don't  think  that  question  arose  in  the  diccus- 
sion  in  the  Committee  at  all.  In  fact,  the  hopes  and  fears  were 
evenly  balanced,  and  the  effort  of  the  Committee  was  to  do  some- 
thing so  good  that  it  would  recommend  it  ito  the  judgment  of  every 
man. 

Mr.  Hole,  of  Beadle:  Under  the  provisions  of  the  Constitution 
of  1885  wThen  did  you  expect  to  elect  the  county  officers? 

Mr.  Huntley,  of  Jerauld:  Well,  that  question  did  not  arise  in 
the  Committee. 


MR.    HUNTLEY    OF    JfiRAULD  447 

Mr.  Hole,  of  Beadle:  It  must  have  arisen.  The  common 
sense  of  any  man  would  suggest  it. 

Mr.  Huntley,  of  Jerauld:  Well,  they  didn't  have  any!  The 
idea  was  that  they  would  hold  their  offices  until  the  expriation  of 
'their  time — that  the  first  officers  would  hold  until  the  general  elec- 
tion. Nothing  of  disputation,  however,  arose  in  the  Committee 
on  that  point,  but  from  the  fact  that  it  was  fixed  that  the  election 
should  be  biennial,  and  no  arrangement  made  for  curtailing  or  ex- 
tending the  term  of  the  county  officers,  my  understanding  of  it  was 
that  the  general  election  would  come  at  the  time  when  the  county 
officers'  terms  expired. 

Mr.  Hole,  of  Beadle:  Let  me  ask  you  another  question.  Then 
the  election  of  county  officers  would  be  on  the  next  fall  after  the 
election  that  was  held  for  Governor? 

Mr.  Huntley,  of  Jerauld:     Certainly. 

Mr.  Hole,  of  Beadle:  Well,  how  long  did  you  elect  Governor 
Mellette  and  the  other  officers  for  at  that  time? 

Mr.  Huntley,  of  Jerauld:  I  dont'  think  it  was  specified.  I 
think  the  understanding  was,  until  the  next  general  election. 

Mr.  Hole,  of  Beadle:  There  is  no  possible  doubt  but  what  you 
had  an  intention  at  that  time.  I  know  I  had  too  much  faith  in 
the  Committee  at  that  time  to  think  that  they  didn't  intend 
something. 

Mr.  Huntley,  of  Jerauld:  Well,  I  think  they  intended  to  elect 
Governor  Mellette  until  the  next  general  election.  However,  the 
question  was  not  in  dispute  there  at  all.  It  was  not  made  a  point 
or  a  question  or  an  issue  at  all  in  the  Committee,  but  I  think  that 
was  the  understanding,  and  taken  for  granted,  and  I  know  that  it 
is  the  idea  of  the  people.  The  question  was  asked  me  more  than 
a  dozen  times  before  coming  here  to  this  Convention,  whether  the 
Convention  would  be  likely  to  fix  for  a  general  election  this  fall, 
and  if  the  county  officers  all  should  be  elected  this  fall,  or  whether 
the  county  officers  would  hold  through  their  term  and  a  general 
election  of  county  and  State  officers  be  held  a  year  from  this  fall, 
and  no  one  ever  broached  the  question  to  me  at  all  as  to  whether 
the  election  should  be  made  annual.  They  all  interpreted  the 
Constitution  to  mean  that  our  election  should  be  biennial — that 
there  should  be  an  election  only  once  in  two  years.  I  did  not  meet 
the  first  individual  that  ever  thought  anything  else,  or  br<>. 
any  other  thought  to  me. 


448  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Neill,  of  Grant:     Mr.  President— 

The  President,  pro  tern:     Mr.  Neill,  of  Grant. 

Mr.  Lee,  of  Spink:  Mr.  President;  I  think  every  member's 
mind  is  made  up  and — 

The  President,  pro  tern:     I  recongized  Mr.  Neill  first. 

Mr.  Neill,  of  Grant:  Mr.  President;  I  am  somewhat  reluctant 
to  give  the  Convention  some  light  on  this  mooted  question  of  how 
the  Convention  of  1885  viewed  this  matter  of  general  elections,  from 
the  fact  that  I  am  afraid  it  is  different  from  what  I  would  like  to 
have  it;  but,  notwithstanding  that,  as  it  will  be  a  matter  of  infor- 
mation to  you,  I  would  simply  state  that  the  question  was  not  much 
discussed  in  1885  whether  or  not  we  could  make  the  State  elections 
co-incident  with  the  general  election.  We  were  too  fearful  at  that 
time  of  encountering  the  opposition  of  any  organized  body  in  the 
new  State  and  finding  its  adverse  influence  against  the  adoption 
of  the  Constitution,  and  we  handled  those  things  very  gingerly, 
and  that  question  was  perhaps  never  raised  in  the  Committee 
further  than  to  be  mentioned  and  passed  by,  for  the  simple  reason 
that  they  did  not  wish  to  antagonize  our  county  officers  throughons 
the  new  State.  It  was  not  intended  that  the  general  electiout 
should  be  changed,  but  that  county  officers  should  hold  their  full 
term  of  two  years  and  be  re-elected  at  the  regular  election  under 
the  Territorial  laws.  The  question  as  to  the  election  of  the  State 
officers  under  the  Constitution — I  would  not  construe  it  that  they 
were  elected  under  that  Constitution  as  by  authority — as  by  pro- 
vision of  manner,  but  that  the  Constitution  itself  had  no  authority 
consequently  the  manner  prescribed  by  the  Constitution  was  adopted 
as  a  mode  or  manner  of  election,  the  authority  coming  from  the 
Convention  itself.  But  now  as  to  the  tenure  of  those  State  officers ; 
they  were  elected  and  no  specific  time  fixed  for  their  term  other  than 
the  general  provisions  of  that  Constitution.  They  were  elected 
in  1885.  We  did  not  expect  to  be  admitted  inside  of  six  months. 
That  would  leave  them  a  year  and  a  half  of  the  two  years  for  which 
they  would  be  elected  at  that  time.  That  was  considered  in  itself 
sufficient  for  the  first  State  officers  of  the  new  State,  if  we  were 
fortunate  enough  to  be  admitted  at  that  time,  but  the  supposition 
was  that  they  were  elected  for  "during  the  war".  The  supposition 
was  that  they  were  elected  for  two  years  under  the  Constitution  — 
that  would  bring  the  year  following  the  regular  election  under 
the  Territorial  laws. 


THE   1885  IDEA  449 


Now  as  corroborative  of  this,  you  will  notice  that  in  Section 
24  of  the  Schedule  and  Ordinance  it  reads  as  follows: 

"The  first  legislature  assembled,  after  the  adoption  of  this 
Constitution,  shall  have  the  power  to  continue  in  session  longer 
time  than  sixty  days,  or  to  adjourn  from  time  to  time,  and  re- 
assemble at  the  call  of  such  officers  as  they  may  prescribe,  until  the 
State  shall  be  admitted  into  the  Union,  or  their  term  of  office  shall 
expire." 

That  is  their  term  of  office  might  expire  before  they  w.ere  ad- 
mitted into  the  Union.  Now,  granting  that  their  term  of  office  must 
expire  at  some  prescribed  period,  namely,  two  years  as  prescribed 
in  the  Article  on  Legislative  and  Executive,  that  would  be  true  of 
any  other  State  officers.  "When  we  held  an  adjourned  session  of 
the  Convention  of  1885,  at  Huron,  the  two  years  were  approaching 
completion.  It  was  thoroughly  discussed  at  that  time,  and  planned 
for  another  election  in  the  fall  of  1887,  and  I  think  that  the  "Ex- 
ecutive Committee"  as  proivded  for  in  this  Schedule  and  Ordinance, 
was  instructed  at  that  time  to  call  that  election  of  1887  to  re-elect 
the  State  officers  and  legislators,  but  that  was  never  carried  out, 
owing  to  the  weak  prospect,  as  I  might  say,  of  our  admission  and 
of  the  success  of  our  movement.  It  was  so  discouraging  and  so 
unpromising  that  it  wa  not  supposed  under  the  Democratic  ad- 
ministration then  that  we  had  any  hopes  under  the  Sioux  Falls 
Constitution,  and  I  suppose  the  authorities,  under  those  circum- 
stances, failed  to  call  that  election  in  1887;  but  it  shows  what  the 
intention  of  the  framers  of  this  Constitution  was  as  to  the  tenure 
of  office ;  namely,  that  they  intended  it  should  be  for  only  two  yean, 
and  if  we  were  admitted  that  there  should  be  another  election  to 
re-endorse  them  n  their  offices. 

Mr.  Williams,  of  Bon  Homme:  Mr.  Chairman;  wo  find  the 
argument  based  upon  this  portion  of  Section  7:  "The  election  pro- 
vided for  herein  shall  be  under  the  provisions  of  the  Constitution 
herewith  submitted."  Now,  I  happen  to  know  the  history  of  that 
phrase  as  it  came  from  the  lips  of  its  author.  It  was  proposed  in 
a  meeting  of  the  Committee  on  Schedule  and  Ordinances,  alter  I 
had  stated  my  views  in  this  matter  in  accordance  with  what  I  have 
stated  here  on  the  floor  of  this  Convention.  I  considered  then  ami 
I  consider  now  that  my  views  were  unanswerable,  in  the  position 
I  took,  and  in  order  that  the  Chairman  of  that  Committee  might 
bridge  over  the  difficulty  that  these  fuels  originate.!,  he  gave  notice- 
then  and  there  that  he  woul.l  offer  as  an  amendment ,  these  words. 


450  SOUTH  DAKOTA  DEBATES,   1889 

that  this  election  is  under  the  provision  of  this  Constitution;  and 
that  is  the  history  of  that  phrase  in  this  section.  And  I  will  say 
further  that  this  provision  has  been  adopted  by  this  Convention; 
it  was  adopted  by  this  Convention  through  an  oversight.  I  had 
an  amendment  ready,  but'  in  the  scramble  last  Friday  night  that 
was  adopted  when  I  was  not  paying  particular  attention,  and  I 
understand  that  when  other  gentlemen  had  read  this  up  this  week 
it  struck  them  as  peculiar  that  this  Convention  should  attempt 
to  do  anything  of  that  kind,  and  they  told  me  they  proposed  to  offer 
an  amendment  to  strike  out  as  being  considerable  nonsense. 

Now,  what  is  meant  by  this  section  26  of  Article  V?  "The 
Judges  of  the  Supreme  Court,  Circuit  Courts  and  County  Courts 
shall  be  chosen  at  the  first  election  held  under  the  provisions  of  this 
Constitution."  I  take  it  that  that  phrase  means  that  at  an  election 
to  be  provided  for  by  law,  which  election  must  have  the  legal  force 
and  authority  of  law,  and  not  that  this  Convention,  by  Ordinance, 
may  extract  "provisions",  by  the  wording  of  the  phrase  "of  this 
Constitution"  and  put  it  in  the  Ordinance  and  thereby  make  it 
under  the  provisions  of  the  Constitution.  The  phrase  means  this, 
that  when  that  Constitution  becomes  the  organic  law  of  this  State, 
then  any  law  that  the  Legislature  may  pass  in  pursuance  of  that 
organic  law,  calling  an  election,  whether  at  that  election  provided 
for  in  the  Constitution,  or  by  the  Legislature,  it  is  that  the  election 
will  be  under  the  Constitution.  The  phrase  means  this;  "UNDER 
THE  AUTHORITY  OF  THE  CONSTITUTION".  Not  the  mere  words  ex- 
tracted and  put  into  some  other  instrument  and  called  "under  the 
Constitution".  It  might  be  under  the  wording  of  the  Constitution, 
but  it  could  not  be  under  the  provisions.  It  means,  when  that  pro- 
vision becomes  the  organic  law  of  this  State.  If  there  is  any  provi- 
sion made  for  the  election  before  the  general  election,  then  these  of- 
ficers shall  be  elected  at  that  election.  Then  the  Constitution 
contemplated  this ;  that  if  the  Legislature,  having  power  by  virtue 
of  this  Constitution,  calls  an  election  at  a  time  other  than  at  the 
general  election,  that  these  officers  may  be  elected  at  that  time ; 
and  that  same  section  makes  provision  that  the  Legislature  under 
the  authority  of  the  Constitution — not  under  anything  else,  and 
under  no  other  body — but  that  the  Legislature,  under  the  authority 
of  the  Constitution,  may  abridge  or  extend  the  time  of  the  Judges 
of  the  Court  who  shall  have  held  the  office  of  judge  at  the  time  the 
Legislature  acted — that  they  shall  abridge  or  extend  the  time  six 


MR.  WILLIAMS  CONCLUDES  451 

months.  For  what  purpose?  For  the  purpose  of  making  pro- 
vision that  the  Judges  of  our  Courts  may  and  shall  be  elected  at  a 
time  different  and  other  than  at  the  election  at  which  our  county 
and  State  officers  are  elected.  That  is  a  good  provision.  But  then, 
that  would  be  an  election  under  and  by  virtue  of  the  authority  of 
the  Constitution,  and  I  claim  that  that  is  just  exactly  what  the 
phrase  "Under  the  provisions  of  this  Constitution"  means.  It 
means,  under  and  by  virtue  of  the  authority  conferred  by  this 
Constitution. 

Now,  what  is  the  condition  we  are  in  here  today?  What  is 
the  argument  of  the  gentlemen  who  take  the  opposite  view  and 
maintain  that  this  is  for  the  election  on  the  first  of  October?  I 
claim  we  might  just  as  well  say  we  can  hold  an  election  on  the  first 
of  October,  on  the  fifth  day  of  October,  or  at  any  other  time  we  see 
fit  to  call  an  election.  We  can  assemble  and  vote,  but  would  our 
votes  be  counted?  There  must  be  an  election  fixed  by  competent 
authority.  What  authority  has  fixed  this  election  for  the  first  of 
October.  It  is  fixed  by  Congress ;  that  is  the  body  that  fixes  this 
election.  Then  Congrees  goes  on  and  says  in  the  Enabling  Act 
that  this  Convention  may  by  ordinance  provide  for  the  election  o' 
officers.  Does  it  say  a  "Dictator"  or  a  "Commander-in-Chief', 
or  some  other  officer  not  provided  for?  No,  Sir;  it  looks  into  the 
Constitution  and  sees  what  officers  are  therein  provided  for  wjieu 
we  become  a  State,  and  it  says  that  this  Convention,  BY  ORDINANCE, 
— not  by  the  authority  of  the  Constitution ;  that  is  a  dead  lettei  -  - 
but  that  this  Convention,  by  ordinance,  may  provide  for  the  election 
of  these  officers  provided  for  in  the  Constitution — the  officers  fired 
in  the  Constitution.  But  does  it  say  they  shall  be  elected  for  any 
particular  length  of  time  ?  It  says  the  officers  provided  for  in  your 
Constitution  may  be,  by  ordinance,  provided  for  their  election  at 
this- time  and  no  other  time.  Now,  the  officers  provided  for  .4re 
the  Governor,  Lieutenant-Governor,  Judges  of  the  Supreme  Court 
and  other  officers.  Their  term  of  office  is  fixed — the  term  of  Gov- 
ernor, Lieutenant-Governor  and  other  State  officers  and  the  mem- 
bers of  the  Legislature.  But  the  term  of  what?  The  tenr  •*•  the 
Governor  ELECTED  UNDER  THE  CONSTITUTION; the  terms  of  UK  wilier 
State  officers,  ELECTED  UNDER  THE  CONSTITUTION.  I  take  it  that 
these  are  the  identical  officers  provided  for.  They  are  gent:. 
elected  to  fill  the  offices  provided  for  in  the  Constitution  but  n..t 
elected  under  the  Constitution.  Why  do  we  do  this ?  P 


452  SOUTH  DAKOTA  DEBATES,  1889 

if  we  adopt  this  Constitution  on  the  first  of  October,  we  have  an 
organic  law,  and  in  order  that  the  laws  of  the  State  may  be  operated 
we  must  have  officers.  Suppose  we  did  not  elect  a  Legislature  and 
State  officers.  We  would  not  have  one  single  agent  to  carry  that 
government  into  operation.  We  would  not  have  State  officers 
to  execute  the  laws.  Then  it  is  absolutely  necessary  that  this  State 
government  shall  go  into  operation  and  that  we  elect  a  provisional 
set  of  officers  in  order  that  we  may  start  and  maintain  that  govern- 
ment in  operation  until  the  State  government,  by  the  chosen  agents 
of  the  people,  may  operate  and  set  in  motion  the  government, 
under  and  by  virtue  of  the  people  thereof.  We  must  elect  these 
agents  at  that  time,  but  not  under  the  Constitution.  We  only 
elect  them  to  take  their  places  under  the  Constitution. 

I  have  taken  some  pains  to  inform  myself  outside  of  the  work 
of  the  Committee  on  Schedule.  On  night  before  last,  in  Yankton, 
I  met  an  old  gentleman  who  was  a  member  of  two  Constitutional 
Conventions  in  Wisconsin.  He  told  me  that  that  was  the  only 
practice  that  they  had  and  that  he  knew  about,  that  the  Convention,, 
by  ordinance,  only  provided  for  the  terms  of  officers  and  legislators 
until  the  State  could  be  put  into  operation,  and  after  that  they 
went  on  and  did  it  under  authority  of  the  Constitution.  I  have 
sought  to  find  somebody  that  has  been  in  constitutional  conventions. 
Then  my  argument  is  this:  That  this  being  an  election  not  under 
the  Constitution,  that  the  terms  of  the  officers  are  not  bound  by 
the  Constitution,  that  they  are  provisional ;'  it  is  a  provisional 
election  and  the  terms  of  officers  elected  at  that  election  shall 
be  provisional,  and  no  other.  I  say  there  is  not  one  syllable, 
from  beginning  to  end  that  provides  for  but  one  election.  It  makes 
provision  that  the  Legislature  may  provide  for  another  election; 
that  the  Legislature  has  authority  under  this  Constitution  to  pro- 
vide for  another  election  than  the  general  election.  But  that  elec- 
tion is  not  here  provided  for.  The  Constitution  passes  over  to 
the  Legislature  the  power  to  provide  for  it ;  then  the  only  election 
provided  for  in  thir.  Constitution  is  the  general  election.  And 
if  this  report,  as  it  comes  from  the  Committee,  is  adopted,, 
instead  of  the  amendment — an  amendment  to  the  report  being 
an  amendment  to  the  Constitution  — the  Legislature  has  the 
discretion  to  provide  or  not  to  provide  for  this  other  election.  That 
is  virtually  an  amendment  to  the  Constitution  and  you  might  just 


TKNURE  OF  OFFICE  453 


as  well  add  a  section  here,  because  the  power  is  here,  and  you  can't 
get  around  it. 

One  gentleman  says  it  is  going  to  drive  us  to  trouble  and  ex- 
pense, under  that  phrase  in  the  Constitution.  I  say  if  there  is  any 
hole  through  which  this  Convention  can  crawl  to  beat  down  and 
prevent  a  general  election  every  year,  this  Convention  ought  to 
expect  it  and  make  provision  for  it.  The  sailing  is  clear,  hov, 
and  it  is  only  clear  in  that  direction.  It  must  be  provided  for  as 
this  amendment  contemplates,  or  else  we  are  all  tangled  up.  The 
Legislature,  if  it  sees  fit,  can  call  another  election.  If  the  people 
don't  see  fit  to  have  another  election,  they  need  not  have  it ;  if  they 
don't  need  it,  they  don't  need  to  have  it. 

And  now,  with  the  consent  of  my  second,  I  will  withdraw  that 
part  of  my  amendment  which  relates  to  the  election  of  Judges,  and 
I  wish  to  say  one  word  on  that.  If  the  report  as  to  the  election  of 
Judges,  as  it  comes  from  the  Committee,  is  adopted,  at  the  general 
election  it  will  be  necessary  for  the  Legislature  to  provide  for  the 
election  of  the  members  of  the  Courts  at  a  different  time,  but  it  will 
be  necessary  that  they  be  elected  at  a  different  time  in  this  amend- 
ment, and  that  is  why  I  withdraw  it. 

Mr.  Wood,  of  Pennington:  As  the  seconder  of  that  amendment , 
I  will  consent  with  reference  to  striking  out  the  figure  "4"  after 
figure  "9"  is  Section  19. 

(Cries  of  "question,  question,  question".) 

Mr.  Jolley,  of  Clay:  Mr.  President ;  I  had  some  notes  here  this 
morning  as  to  what  arguments  I  should  present  to  the  Convention 
for  voting  against  the  amendment  of  the  gentleman  from  B«m- 
Homme,  but  some  gentleman,  either  the  gentleman  from  Penning- 
ton, or  somebody  else,  hooked  my  memoranda. 

All  I  have  got  to  say  is  this ;  that  the  gentlemen  who  offered  the 
amendment  have  tried  to  blind  the  Convention.     If  you  pass  this 
amendment  you  elect  a  Legislature  in  1889,  and  then  you  elect  them 
in  1890— sessions  of  the  Legislature  in  1890  and  1891.     You  . 
men  who  are  opposing  these  officers  holding   their  offices  tor  two 
years,  do  it  on  the  ground  of  economy.     Now,  if  an  election  don't 
cost  very  much  where  you  elect  a  Legislature,  then  it    don't  cost 
very  much  where   you  elect   State   officers  ;  ami  it  y«»u  think  the 
sessions  of  the  Legislature  don't  ost  very  much,  look  at  t; 
session  of  the  Legislature ;  and  in  the  language  of  one  \v! 
on  a  desolate  island  and  who  seemed  not  to  have  much  li"iv  in  this 


454  SOUTH  DAKOTA  DEBATES,  1889 

world  and  none  in  the  next,  I  exclaim,  "From  the  rocks  and  sands 
and  barren  lands  and  two  sessions  of  the  Legislature  in  succeeding 
years,  good  Lord,  deliver  me!" 

Mr.  Boucher,  of  McPherson:  Mr.  President;  a  gentleman 
raises  the  question,  do  we  by  adopting  this  amendmentproposed  by 
the  gentleman  from  Bon  Homme,  amend  the  Constitution?  I  give 
the  answer  for  what  it  is  worth,  that  we  certainly  do  not.  Nobody 
pretends  that  we  do,  because  we  have  got  no  Constitution  to  amend. 
The  Constitution  provides  that  these  officers  shall  hold  for  two 
years.  How  can  we,  by  ordinance  make  that  consistent  with  the 
Constitution?  We  can  only  have  officers  elected  for  two  years  and 
have  the  elections  come  biennially  by  electing  these  officers  at  the 
ne*xt  general  election.  That  is  the  only  consistent  way  we  can 
arrive  at  it. 

(Cries  of  "Question,  question,  question.") 

Mr.  Williams,  of  Bon  Homme:  Mr.  Chairman;  I  move  the 
previous  question  upon  the  amendment. 

I  withdraw  the  motion  and  ask  that  the  main  question  be  put. 

Mr.  Hole,  of  Beadle:  Mr.  Chairman;  I  will  ask  for  a  c'all  of 
the  roll. 

The  President,  pro  tem:  The  Chairman  of  the  Schedule  Com- 
mittee moves  the  adoption  of  Section  19;  the  gentleman  from  Bon 
Homme  moves  the  amendment  that  the  word  "1892"  be  stricken 
out  and  the  word  "1891"  be  inserted  in  its  place.  How  shall  you 
vote?  (Cries  of  "Roll  call,  roll  call".)  Those  in  favor  of  the 
amendment  will  answer  aye,  and  those  opposed  no,  as  their  names 
are  called. 

The  roll  was  called. 

The  President,  pro  tem:  The  vote  stands  36  ayes  and  36  noes. 
The  amendment  is  therefore  lost. 

Mr.  Hole,  of  Beadle:  Mr.  Chairman;  I  move  you  the  adoption 
of  Sections  19  and  20,  as  reported. 

A  Delegate:     I  second  the  motion. 

The  President,  pro  tem:  All  those  in  favor  of  the  motion  to 
adopt  Sections  19  and  20,  as  reported,  by  the  Committee  on  Schedule 
will  signify  it  by  saying  aye;  opposed,  no.  The  ayes  have  it,  and 
the  motion  prevails. 

President  Edgerton  resumed  the  chair. 


CONSIDERATION  OF  JOINT  COMMITTEE  REPORT          455 

Mr.  Hole,  of  Beadle:  Mr.  President;  I  move  you  that  the  re- 
port of  the  Schedule  Committee,  as  a  whole,  be  adopted. 

Mr.  Kellam,  of  Brule:     Mr.  President — 

Mr.  Hole,  of  Beadle  Mr.  President;  I  will  withdraw  the  mo- 
tion for  th«  present.  There  is  an  addition  to  be  offered  by  the  Com- 
mission from  North  Dakota. 

Mr.  Brott,  of  Brown:     You  mean  from  SOUTH  Dakota. 

Mr.  Hole,  of  Beadle:  I  ask  that  this  motion  may  be  made  to 
indued  the  recommendation  of  the  Committee  from  North  Dakota, 
and  I  would  ask  for  the  reading  of  that  part  asked  to  be  included 
in  the  Schedule  and  Ordinance. 

Mr.  Brott,  of  Brown:  Please  say  from  "South"  Dakota;  we 
don't  want  to  be  understood  as  from  North  Dakota! 

Mr.  Caldwell,  of  Minnehaha:  Mr.  President;  that  portion  of 
the  Schedule  and  Ordinance  suggested  by  the  South  Dakota  Com- 
mittee on  the  Joint  Commission  is  a  part  of  the  general  agreement 
which  has  been  submitted,  and  if  it  could  be  done  it  would  <eem 
to  me  it  would  be  proper  to  hold  open  consideration  of  the  Schedule 
until  after  the  entire  agreement  has  been  submitted,  because  that 
portion  of  it  that  is  recommended  to  go  into  the  Schedule  and  Or- 
dinance is  incidental  to  the  report  itself. 

Mr.  Jolley,  of  Clay:  Mr.  President;  I  move  that  the  report  of 
the  Committee  on  Schedule  be  laid  aside,  and  that  we  take  up  the 
report  of  the  Committee  from  the  Joint  Commission. 

A  Delegate:     Second  that  motion. 

The  President  of  the  Convention:  It  has  been  moved  that  the 
report  of  the  Committee  on  Schedule  be  now  laid  aside  and  that  the 
Convention  take  up  the  report  of  the  Joint  Commission.  All  those 
who  favor  this  motion  will  say  aye ;  contrary  no.  The  ayes  have 
it.  We  will  now  proceed  to  the  consideration  of  the  report  of  tlio 
Committee.  Major  Kellam,  of  Brule,  I  understand  you  wish  to 
bring  that  up  now? 

Mr.  Kellam,  of  Brule:  No,  Sir;  I  was  about  to  suggest,  upon 
the  motion  of  Mr.  Hole,  to  adopt  the  Schedule  Committee  report 
as  a  whole,  that  before  action  was  taken  upon  that,  the  agreenu-nt, 
or  so  much  of  it  as  the  Commission  recommends  should  go  into  the 
Schedule,  ought  to  be  considered. 

The   President  of  the  Convention:     Tlu-n-  is  nothing  l- 
the  Convention,  as  I  understand 


456  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Caldwell,  of  Minnehaha:  Mr.  President;  the  agreement 
has  been  presented  to  the  Convention  and  is  upon  the  Secretary's 
desk. 

Mr.  Huntley,  of  Jerauld:  Mr.  President;  I  move  that  we  pro- 
ceed to  consider  the  report  of  the  Commission. 

Mr.  Harris,  of  Yankton:  Mr.  President;  I  move  as  an  amend- 
ment, that  we  incorporate  this  agreement  which  they  have  arrived 
at,  in  the  Constitution.  We  have  no  right  to  consider  it.  It  is 
our  duty  to  incorporate  it  in  the  Constitution. 

Mr.  Hole,  of  Beadle:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  Convention  now  incorporate  in  the  Constitution  the  agreement 
arrived  at  by  the  Joint  Commission. 

Mr.  Kellam,  of  Brule:  Now,  Mr.  President,  I  apprehend  that 
there  is  not  a  perfect  understanding  of  the  thought  suggested.  The 
Enabling  Act  under  which  this  Convention  meets  and  this  Com- 
mission was  appointed,  provides  that  the  agreement  reached  by  this 
Commission — this  Joint  Commission, — shall  be  incorporated  into 
the  Constitutions  of  the  respective  States.  That  much  is  certain, 
but  what  I  had  in  my  mind  is  suggested  and  arose  by  the  action  of 
this  Convention  upon  the  Schedule  report,  and  it  is  this:  After 
the  Commission  was  organized  at  Bismarck  and  had  begun  its  deliber- 
ations, it  was  developed  that  there  was  quite  a  lack  of  harmony 
in  the  Commissions  of  both  North  and  South  Dakota,  as  to  the 
powers  of  that  Commission  with  reference  to  the  disposition  "of  the 
records  and  archives  of  the  Territory.  There  seems  to-be  a  conflict 
between  Sections  5  and  6, — Section  5  declaring  that  the  records, 
books  and  archives  of  the  Territory  shall  remain  at  Bismarck, 
the  capital  of  North  Dakota,  until  an  agreement  is  reached  regarding 
the  same  by  the  States.  Section  6  provides: 

'It  shall  be  the  duty  of  the  Constitutional  Conventions  of 
North  Dakota  and  South  Dakota  to  appoint  a  Joint  Commission 
to  be  composed  of  not  less  than  three  members  of  each  Convention, 
whose  duty  it  shall  be  to  assemble  at  Bismarck,  the  present  seat 
of  government  of  said  Territory,  and  agree  upon  an  equitable 
division  of  all  property  belonging  to  the  Territory  of  Dakota, 
the  disposition  of  all  public  records,  and  also  adjust  and  agree  upon 
the  amount  of  the  debts  and  liabilities  of  the  Territory  which  shall 
be  assumed  and  paid  by  each  of  the  proposed  states  of  North  Dakota 
and  South  Dakota ;  and  the  agreement  reached  respecting  the  Ter- 
ritorial debts  and  liabilities  shall  be  incorporated  in  the  respective 


AGREEMENT  WITH   NORTH   DAKOTA  457 

Constitutions,  and  each  of  said  States  shall  obligate  itself  t 

its  proportion  of  such  debts  and  liabilities  the  same  as  if  they  had 

been  created  by  such  States  respectively." 

We  were  unable  to  harmonize  what  was  a  disagreement  among 
ourselves  upon  that  point,  and  as  a  compromise  and  an  agreement 
upon  which  we  could  unite,  we,  before  any  agreement  as  to  the  dis- 
position of  the  records  was  made,  passed  a  resolution  that  whenever 
an  agreement  should  be  reached  each  Commission  should  recom- 
mend to  its  Convention  the  incorporation  of  that  agreement  into 
the  Schedule  of  the  Constitution  submitted  by  that  Convention, 
so  that  it  might  be  accepted  by  the  people  and  thus  become  the 
agreement  of  the  States.  The  point  was,  that  the  Joint  Commission 
under  the  two  Sections  5  and  6  had  no  authority  to  make  absolute 
disposition  of  these  records,  or,  that  the  authority  which  seemed  to 
be  conferred  by  Section  6  had  already  been  limited  by  Section  5. 

Now,  the  thought  that  I  had  was  that  we  want  to  report  to 
this  Convention  the  agreement  we  have  made  with  referem  e  t<> 
the  records  and  archives  of  the  Territory,  and  also  report  to  you 
the  resolution  that  was  passed  by  the  Joint  Commission,  that  that 
agreement  should  be  made  a  part  of  the  Schedule  in  each  Consti- 
tution. It  is  not  with  reference  to  the  agreement  as  to  the  debts 
and  liabilities  of  the  Territory  that  I  now  refer. 

Voice:     Well,  that  is  not  the  question  before  the  house. 

Mr.  Kellam,  of  Brule:  That  is  the  very  reason  I  urge  this 
thought. 

Mr.  Harris,  of  Yankton:  My  intention  was  to  move  that  the 
agreement,  commencing  at  the  Preamble  and  ending  \vith  Article 
XXIV,  should  be  incorporated  into  the  Constitution.  We  have  no 
control  over  it.  I  did  not  intend  to  include  their  recommendati.  n 
about  incorporating  the  agreement  about  the  records  in  the  Schedule. 
I  do  not  think  my  motion  was  broad  enough  to  cover  anything  hut 
that  ending  with  Article  XXIV — the  agreement,  commencing  with 
the  Preamble  and  ending  with  Article  X  XIV. 

Mr.  Caldwcll,  of  Minnehaha:  Mr.  President;  it  will  probably 
assist  the  Convention  in  arriving  at  a  conclusion  upon  the  ni<>ti<>n 
of  the  gentleman  from  Yankton,  if  the  Convention  will  understand 
that  there  are  practically  three  divisions  of  this  Agreement  in  gen- 
eral  which  has  been  submitted  by  the  Committee.  There  is  that 
part  of  this  agreement  which  refers  to  the  debts  and  hal.il:; 
the  Territory  ;  there  is  that  part  of  it  which  is  of  general  application, 


458  SOUTH  DAKOTA  DEBATES,  1889 

and  there  is  that  part  of  it  which  refers  to  the  public  records.  Only 
two  of  these  parts  are  to  be  incorporated  into  the  Constitution,  or 
the  Schedule  and  Ordinance.  That  part  of  the  report  with  ref- 
erence to  the  debts  and  liabilities  must  go  into  the  Constitution. 
It  is  recommended  that  that  part  of  it  which  refers  to  the  public 
records,  shall  go  into  the  Schedule  and  Ordinance ;  and  there  is  no 
recommendation  whatever  in  regard  to  that  part  of  it  which  applies 
to  public  property  and  miscellaneous  subjects.  The  Commission 
agreed  upon  what  part  of  their  general  report  should  be  submitted 
to  the  respective  Conventions  to  be  incorporated  into  the  respec- 
tive Constitutions.  That  is  a  different  report  from  this  general 
Agreement.  The  document  which  has  nowr  been  conveyed  to  this 
Convention  by  the  Commission  from  South  Dakota  includes  every- 
thing that  was  agreed  upon  by  the  Commission,  but  in  order  that 
the  Convention  may  have  before  it  only  so  much  of  this  report  as 
it  was  decided  by  the  Commission  should  be  included  within  the 
Constitution  proper,  it  will  be  "necessary  that  there  be  another  re- 
port from  the  Commission,  which  report  will  be  ready,  and  made 
as  soon  as  there  shall  be  consideration  of  the  report  in  general. 
So  it  would  seem  to  me  that  the  proper  thing  to  do  is  to  acquaint  the 
Convention  officially  with  what  was  the  Agreement  as  a  whole,  which 
would  be  done  by  the  reading  of  it  at  this  time,  or  else  by  dispensing 
with  the  reading  and  regarding  it  as  read,  inasmuch  as  it  is  upon 
the  desks  of  the  members,  having  been  printed  in  the  Journal.  It 
would  then  be  competent  to  speak  of  these  two  provisions  to  which 
I  have  made  reference,  one  of  which  is  to  be  incorporated  into  the 
Constitution  and  the  other  of  which  is  recommended  to  be  incorpor- 
ated into  the  Schedule  and  Ordinance.  I  will  say  that  the  agree- 
ment which  has  been  decided  shall  be  incorporated  into  the  Con- 
stitutions, are  Sections  1,2,3  and  4,  and  Section  10,  I  think,  and 
19  and  21 ;  all  of  which  refer  to  the  matter  of  debts  and  liabilities, 
and  they  are  the  only  Sections  of  the  Agreement,  as  a  whole,  which 
refer  to  the  debts  and  liabilities,  and  they  are  the  only  portions 
of  the  Agreement  as  a  whole  which  the  Omnibus  Bill  requires  shall 
be  incorporated  into  the  Constitution. 

Mr.  Kellam,  of  Brule:  I  don't  think  I  know  exactly  what  is 
now  pending  before  the  Convention,  but,  whatever  it  is,  I  move 
as  a  substitute  therefor,  that  the  Schedule  Committee  report  be 
amended  by  inserting,  first,  the  matter  found  on  page  12  of  the 


AGREEMENT  WITH   NORTH  DAKOTA  459 

Journal  (Page  144  of  the  bound  Journal),  commencing  near  the 
bottom  of  the  page  with  the  words,  "The  Agreement  made  by  the 
Joint  Commission"  Etc.,  and  including  all  down  to  the  parenthesis; 
then  following  the  Agreement  that  was  made  by  the  Joint  Com- 
mission. 

The  President  of  the  Convention:  Mr.  Harris,  of  Yankton, 
moves  the  adoption  of  the  resolution  to  be  read  by  the  Clerk. 

Read  as  follows: 

RESOLVED,  That  this  Convention  do  now  incorporate  in  the 
Constitution  the  agreement  of  the  Joint  Commissions  of  North 
Dakota  and  South  Dakota,  commencing  with  the  Preamble  and 
ending  with  the  close  of  Article  XXIV. 

The  President  of  the  Convention:  To  this  the  gentleman  from 
Brule  moves  the  following  substitute: — 

Mr.  Harris,  of  Yankton:  Mr.  President,  I  rise  to  a  point  of 
order.  It  relates  to  another  subject  matter  entirely. 

Mr.  Neill,  of  Grant:  Mr.  Chairman;  Major  Kellam,  I  think, 
is  working  under  a  misapprehension  as  to  the  nature  of  the  motion 
the  Convention  is  working  under.  It  was  decided  that  we  take 
up  that  portion  of  the  Agreement  of  the  Commission  which  should 
be  incorporated  into  the  Constitution  proper.  That  was  the  mo- 
tion, I  understand,  of  Mr.  Harris,  of  Yankton. 

Mr.  Kellam,  of  Brule:     I  did  not  understand  that. 

The  President  of  the  Convention:  The  gentleman  from  Yank- 
ton  raises  the  point  of  order  that  the  substitute  moved  by  the 
gentleman  from  Brule  does  not  refer  to  the  same  subject  matter. 
From  the  reading  of  the  motions  I  am  unable  to  determine. 

Mr.  Kellam,  of  Brule:  Well,  if  the  Convention  is  now  consider- 
ing another  matter,  of  course  the  point  of  order  is  well  taken  and 
I  will  withdraw  my  motion. 

Mr.  Harris,  of  Yankton:     Mr.  President;  it  is  under  this  pro- 
vision of  the  Omnibus  Bill  that  I  make  this  motion:     "And  the 
Agreement  respecting  the  Territorial  debts  and  liabilities  shall  be 
incorporated  in  the  respective  Constitutions,  and  each  of  said  S 
etc. 

Mr.  Price,  <i  H\de:   Mr.  President;  I  was  about  to  remark  that 
while  the  Agreement  reached  by  the  Commission  contains    main- 
other  things  besides  the  report  relative  to  debts  and  liab, 
and  I  will  state  further,  that  the"}oint  Commission  havi-  pass 
will  present  to  the  Convention  at  the  proper  time  what   in    their 


460  SOUTH  DAKOTA  DEBATES,  1889 

judgment  ought  to  be  incorporated  in  the  Constitution— after  a 
full  and  fair  discussion  of  the  whole  they  came  to  the  conclusion 
that  it  would  not  be  necessary — in  fact,  that  it  would  be  unwise  and 
cumber  the  Constitution,  to  insert  this  Agreement  in  full,  as  con- 
templated by  the  gentleman  from  Yankton  county,  and  they  desire 
to  insert  so  much  as  in  their  opinion  would  be  necessary  to 
insert  in  the  Constitution.  While  it  is  true  that  the  Omnibus 
Bill  says  that  "The  Agreement"  etc.,  shall  be  incorporated,  this  re- 
port refers  to  many  other  things. 

Mr.  Harris,  of  Yankton:  I  would  like  to  inquire  if  there  is 
anything  in  that  Agreement,  commencing  with  the  Preamble  and 
ending  with  Article  XXIV,  that  would  be  improper  to  put  into  this 
Constitution? 

Mr.  Price,  of  Hyde:     I  think  not. 

Mr.  Harris,  of  Yankton:  Well,  if  there  is  nothing  there  that 
is  improper  to  go  into  the  Constitution,  I  believe  we  had  better  put 
it  all  in  at  once  and  get  rid  of  it. 

Mr.  Caldwell,  of  Minnehaha:  Mr.  President;  it  will  of  course 
be  appreciated  as  desirable  by  every  member  of  this  Convention, 
that  what  goes  into  the  Constitution  of  South  Dakota  in  regard  to 
this  mutual  Agreement,  should  be  a  counterpart  of  that  which  goes 
into  the  Constitution  of  North  Dakota  in  regard  to  this  Agreement, 
and  the  Joint  Commission  have  prepared  and  will  submit  a  report 
which  was  arrived  at,  both  with  reference  to  the  Constitution  of 
North  Dakota  and  with  reference  to  the  Constitution  of  South 
Dakota,  and  which  includes  some  matters  not  contained  in  the 
language  of  the  Agreement  as  already  submitted.  For  instance, 
it  was  necessary  of  course  that  there  be  adopted  by  both  Conven- 
tions a  section  by  which  each  State  should  assume  the  labilities 
taken  by  each  under  the  Agreement  as  arrived  at;  and  this  report 
to  which  I  refer,  which  relates  particularly  to  debts  and  liabiliti  s, 
contains  that,  and  it  is  already  prepared.  This  is  in  the  hands  of 
the  Chairman.  But  the  proper  thing,  as  it  seems  to  me,  is  for  this 
Convention  to  take  up  for  consideration,  by  reading,  this  Agree- 
ment, or  else  by  postponing  the  matter  of  Agreement  and  consider- 
ing it  read,  the  text  of  it  being  on  the  tables  of  the  members.  When 
that  is  done  then  there  will  come  up  the  further  report  of  the  Com- 
micsion,  which  includes  onlv  so  much  of  this  matter  as  was  decided 


CONSIDERATION  OF  REPORT  461 

by  the  Joint  Commission  should  be  incorporated  in  both  ( 
tutions. 

Mr.  Clough,  of  Codington:  Mr.  Chairman ;  it  seems  to  me  this 
Committee  ought  to  be  allowed  the  privilege  of  making  a  report 
conveniently,  and  as  it  is  now  five  minutes  of  twelve  o'clock,  I  move 
that  this  Convention  do  now  take  a  recess  until  two  o'clock,  when 
the  Committee  be  requested  to  present  a  report  as  they  desire  so 
to  do. 

A  Delegate:     I  second  the  motion. 

Mr.  Hole,  of  Beadle:  Mr.  President;  isn't  that  hour  occupied 
already  by  an  arrangement  to  meet  the  Committee  that  come  in 
regard  to  irrigation  ? 

A  Voice:     We  don't  want  to  irrigate! 

Mr.  Caldwell,  of  Minnehaha:  Mr.  Chairman;  of  course  I  know 
that  a  motion  to  adjourn  is  not  debatable,  but  then  I  know  this 
whole  matter  can  be  disposed  of  in  five  minutes.  If  this  general 
report  is  to  be  regarded  as  in  the  possession  of  the  Convention,  then 
there  is  no  action  in  this  Convention  necessary  upon  that,  and  if 
the  Committee — 

Mr.  Elliott,  of  Turner:  Mr.  President,  I  rise  to  a  point  of 
order.  There  is  a  motion  to  adjourn  before  the  house. 

The  President  of  the  Convention:  This  is  not  a  motion  to 
adjourn.  '  It  is  a  motion  to  adjourn  and  instruct,  which  I  under- 
stand is  debatable. 

Mr.  Caldwell,  of  Minnehaha:  It  will  be  regarded  as  being  in 
and  this  report  can  be  fixed  up  in  five  minutes. 

The  President  of  the  Convention:  The  motion  before  the 
Convention  is  that  we  now  take  a  recess  until  two  o'clock  and  that 
the  Committee  appointed  by  the  Convention  of  South  Dakota  to 
form  a  part  of  the  Joint  Commission  be  instructed  to  make  a  report 
at  that  time. 

Mr.  Kellam,  of  Brulc:  Mr.  President;  I  would  state  that  this 
Committee  is  ready  to  report,  and  it  has  been  since  the  moment  it 
landed  here,  if  it  only  had  the  opportunity  to  report. 

The  President  of  the  Convention:  As  many  as  arc  in  favor 
that  the  motion  prevail  will  say  Ayr  ;  <••  mtrary  no.  The  ayes  appear 
to  have  it. 

(Cries  of  "Division,  division.") 


462  SOUTH  DAKOTA  DEBATES,  1889 

The  President  of  the  Convention:  Those  of  the  opinion  that 
the  motion  prevail  will  rise  and  stand  and  be  counted. 

The  Clerk  announced  that  there  were  42  ayes. 

The  President  of  the  Convention:  There  are  42  ayes  and  the 
motion  prevails. 

The  Committee  appointed  to  meet  the  Senatorial  Committee 
this  afternoon  in  this  room  are  requested  by  the  Chairman  of  the 
Committee  to  meet  him  immediately  after  the  adjournment,  and 
that  there  may  be  no  mistake,  the  Clerk  will  read  the  list  of  the  Com- 
mittee again. 

The  Clerk  read  the  names  of  the  Committee ;  when  a  recess  was 
taken  until  two  o'clock  P.  M. 

Two  o'clock  P.  M. 

The  Convention  convened  and  was  called  to  order  by  the 
President. 

Mr.  Van  Buskirk,  of  Codington,  was  called  to  the  Chair. 

Mr.  Edgerton,  of  Davison:  Mr.  President;  I  voted  this  morn- 
ing with  the  majority  to  reject  the  amendment  that  was  then  pro- 
posed. I  have  been  informed  during  the  recess  that  the  loss  of 
that  amendment  will  render  it  necessary  that  all  of  the  county  of- 
ficers throughout  South  Dakota  shall  be  elected  this  coming  fall.  I 
did  not  so  understand  it  when  I  voted.  I  have  had  no  opportunity 
to  examine  it  and  I  have  not  decided,  but  if  there  is  a  possibility 
that  that  construction  can  be  placed  upon  it,  why  I  want  the  amend- 
ment to  carry.  I  told  the  gentlemen  that  I  would  move  this  re- 
consideration, so  as  to  allow  them  the  opportunity  of  presenting 
that  themselves  to  the  Convention.  I  voted  against  the  amend- 
ment and  for  the  report  of  the  Committee,  because  it  was  the  re- 
port of  the  Committee.  I  took  it  for  granted  that  the  Committee 
had  examined  it  and  were  better  prepared  than  I  could  be,  but  if 
there  is  a  possibility  that  such  a  construction  can  be  passed  upon  it — 
and  Mr.  Wood,  of  Pennington,  tells  me  he  believes  that  is  the  correct 
law  of  the  case — ,then  I  voted  without  understanding  its  effect, 
and  I  therefore  move  a  reconsideration  of  the  motion  by  which 
the  Convention  refused  to  adopt  the  amendment. 
Mr.  Peck,  of  Hamlin:  I  will  second  that. 

The  President  pro  tern:  Gentlemen  of  the  Convention,  the 
motion  before  the  Convention  is  to  reconsider  the  motion  by  which 
the  report  of  the  Schedule  Committee  upon  Section  19  and  20  was 


THE  TENURE  CLAUSE  RECONSIDERED  463 

adopted  and  the  amendment  rejected.         Is  the  Convention  ready 
for  the  question? 

Mr.  Elliott,  of  Turner:  Mr.  President ;  so  far  as  I  am  concerned 
individually,  I  am  not  prepared  to  vote  upon  that  question  now.  I 
would  like  to  hear  from  some  of  the  Committee  upon  that  question. 
If  there  is  a  possibility,  as  has  been  stated  by  the  gentleman  from 
Davison  county,  for  the  electi9n  of  all  of  these  officers,  I  shall  cer- 
tainly vote  for  the  reconsideration,  but  if  there  is  none,  I  shall 
adhere  to  the  vote  I  made  on  the  question  this  morning. 

Mr.  Hole,  of  Beadle:  Mr.  Chairman,  the  gentleman  from  Pen- 
nington  came  to  that  conclusion,  I  think,  without  reading  Section 
5  of  Article  IX.  Section  5  of  Article  IX  provides  this: 

In  each  organized  county,  at  the  first  general  election  held 
after  the  admission  of  the  State  of  South  Dakota  into  the  Union, 
and  everv  two  years  thereafter,  there  shall  be  elected  a  Clerk  of 
the  Court,  Sheriff,  County  Auditor,  Register  of  Deeds,  Treasurer, 
State's  Attroney,  Surveyor,  Coroner  and  Superintendent  of  Schools 
whose  term  of  office  respectively  shall  be  two  years,  and  except 
Clerk  of  the  Court,  no  person  shall  be  eligible  for  more  than  four 
years  in  succession  to  any  of  the  above  named  offices. 

Mr.  Wood,  of  Pennington:     That  is  exactly  what      did  read. 

M.  Hob,  of  Beadle:  Now,  if  there  is  no  election  provided  for 
this  fall,  except  in  October — we  are  not  to  be  admitted  until  after 
October — until  sometime  in  November — why,  it  is  an  impossibility  ; 
there  can  be  no  officers  elected  until  the  next  year.  That  is  the 
intention.  That  is  the  understanding  of  every  delegate  and  tlu-ri- 
can  be  no  possible  question  on  that  point.  If  there  is  any  question, 
that  can  be  met  without  attempting  to  undo  what  has  been  thought 
to  be  the  correct  course,  but  there  is  no  possible  way  in  which  these 
officers  can  be  elected  this  fall.  The  provision  as  to  all  the  State 
officers  is  as  to  the  first  election ;  the  provision  as  to  county  officer 
is  at  the  first  general  election  after  the  admission  of  South  Dakota 
into  the  Union.  Now,  there  is  no  possible  question  there.  There 
is  no  gentleman  in  this  house  who  has  any  possible  question 
what  that  means.  It  means  that  the  election  shall  be  held  in 
November,  the  coming  year.  That  is  the  first  possible  ekvtion 
under  the  Constitution.  We  cannot  be  admitted  until  after  the 
time  for  the  election  of  county  officers  has  passed.  There  is  nothing 
in  the  Schedule  of  Constitution  which  can  possible  tend  t.>  any 
other  conclusion. 


464  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Wood,  of  Pennington:  I  do  not  think  it  advisable  on  this 
motion  to  reconsider  to  argue  the  whole  proposition. 

The  President  pro  tern: 

Mr.  Wood,  of  Pennington:  Now,  if  the  Convention  desires 
to  hea  any  further  argument  upon  that  proposition,  then  of  course 
they  will  reconsider.  I  think  the  Convention  would  be  acting 
wisely  if  they  would  support  the  motion  to  reconsider. 

Mr.  Lee,  of  Spink:  Mr.  Chairman;  I  am  satisfied  that  we  shall 
get  into  trouble  in  many  ways  and  I  don't  wish  to  review  all  the 
ground  that  has  been  gone  over  here.  There  seems  to  be  a  dis- 
tinction without  a  difference.  My  friend  is  talking  about  the  beau- 
tiful bridge ;  the  Omnibus  Bill  is  the  bridge  over  which  we  get  to 
statehood,  and  it  appears  t9  me  if  we  don't  reconsider  this  that 
we  have  knocked  the  bridge  all  to  pieces.  I  believe  the  gentleman 
to  my  lef  c  (Mr.  Edgerton,  of  Davison)  is  correct.  This  law  can  be 
so  construed  as  that  we  will  have  to  re-elect  all  these  county  officers, 
and  I  will  go  heart  and  hand  for  the  amendment. 

The  President  pro  tern:  I  will  re-state  the  motion.  This 
morning  the  Convention  declined  to  amend  the  report  of  the  Schedule 
Committee  as  to  Sections  19  and  20,  and  the  report  of  the  Com- 
mittee was  adopted  as  to  those  Sections.  Now  the  motion  before 
the  house  is  to  re-consider  that  vote. 

Mr.  Jolley ,  of  Clay:     Mr.  President;  I  call  for  the  ayes  and  noes. 

The  President  pro  tem:  The  ayes  and  noes  are  called  for. 
All  those  that  are  in  favor  of  the  reconsideration  of  the  motion 
by  which  Sections  19  and  20  were  adopted  will  vote  aye,  contrary 
no. 

The  roll  was  thereupon  called 

The  President  pro  tem:  The  result  of  the  motion  to  reconsider 
is  42  in  favor  and  16  against.  The  motion  to  reconsider  preva  Is. 
What  is  the  further  pleasure  of  the  Convention? 

Mr.  Wood,  of  Pennington:  Now,  Mr.  President,  I  desire  to 
call  the  attention  of  the  Convention  more  particularly  to  the 
danger  which  we  had — 

Mr.  Jolley,  of  Clay:  Will  the  gentleman  from  Pennington 
allow  me  to  ask  a  question  of  the  Chair?  Mr.  President,  what  is 
the  condition  of  the  business  of  the  Convention  now?  I  understood 
the  Chair  to  state  that  the  vote  by  which  those  two  Sections  wrere 
adopted  was  reconsidered.  The  motion  is  therefore  upon  the 
adoption  of  those  two  Sections.  That  is  the  way  I  understand  it. 


FIRST  GENERAL  ELECTION  465 

Mr.  Wood,  of  Pennington:  I  don't  understand  it  so.  I  under- 
stand, Mr.  Chairman,  that  the  motion  to  reconsider  reconsidered 
tin-  whole  proposition,  and  I  understand  that  now  the  amendment 
to  Section  19  is  before  the  Convention. 

Mr.  Jolley,  of  Clay:  You  can't  reconsider  two  questions  in 
one  motion. 

Mr.  Edgerton,  of  Davison:  Mr.  President;  I  think  the  gentle- 
man from  Clay  is  correct.  I  therefore  move  you,  Mr.  President ,  to 
reconsider  the  vote  by  which  the  Convention  rejected  the  amend- 
ment. 

A  Delegate:     I  second  the  motion. 

The  President  pro  tem:  The  question  is  upon  the  motion  of 
the  gentleman  from  Davison  to  reconsider  the  vote  by  which  the 
Convention  rejected  the  amendment  to  Section  19.  Is  the  Con- 
vention ready  for  the  question? 

(Cries  of  "Question,  question".) 

Mr.  Hole,  of  Beadle:  I  think,  as  a  point  of  order,  that  the 
mover  of  this  motion  voted  against  that  amendment. 

Mr.  Edgerton,  of  Davison:  That  is  correct,  and  that  was  the 
prevailing  party.  We  succeeded ;  we  beat  the  amendment!  (Great 
laughter.) 

The  President  pro  tem:  As  many  as  are  of  the  opinion  that 
the  motion  to  reconsider  the  vote  by  which  the  amendment  was 
rejected,  will  say  aye;  contrary  no.  The  ayes  have  it  and  the  mo- 
tion is  carried. 

Mr.  Hole,  of  Beadle:  Mr.  Chairman ;  I  do  not  wish  to  make  a 
speech  on  this.  I  merely  wish  to  read  Section  20  of  the  Schedule 
and  Ordinance,  which  provides:  • 

"That  the  first  general  election  under  the  provisions  of  this 
Constitution,  shall  be  held  on  the  first  Tuesday  after  the  first 
Monday  in  November,  1890,  and  every  two  years  thereafter." 

That  is  the  first  general  election.  1  will  read  it  again,  lx:cause 
I  think  this  settles  the  whole  question,  so  far  as  the  question  has 
been  raised  by  the  gentleman  from  Pennington. 

"That  the  first  general  election  under  the  provisions  of  this 
Constitution,  shall  be  held  on  the  first  Tuesday  after  the  first. 
Monday,  in  November,  1890,  and  every  two  years  thereafter." 

Now  then,  Article  IX — 

Mr.  Edgerton.  of  Davison.  resumed  the  chair. 

The  President  of  tin-  Convention:     Mr.  Hole,  if  you  will  allow 


466  SOUTH  DAKOTA  DEBATES,  1889 

an  interruption,  I  understand  the  Senatorial  Committee  are  now 
coming  into  the  hall. 

Mr.  Hole,  of  Beadle:     I  waive,  with  pleasure. 

The  President  of  the  Convention:  According  to  the  order  of 
the  Convention  this  morning,  there  will  be  a  recess  now,  in  order 
that  the  Committee  that  was  appointed  by  the  Convention  this 
morning  to  present  certain  facts  to  the  Senatorial  Committee 
might  have  an  opportunity  and  also  that  they  might  present  the 
delegates  of  the  Convention  to  the  members  of  the  Committee,  and 
during  the  recess,  the  Chairman  of  the  Committee  will  preside — 
Dr.  McGillycuddy. 

Mr.  Gillycuddy,  of  Pennington,  took  the  chair. 

The  Chairman  of  the  Conference:  Gentlemen,  is  it  your 
pleasure  to  be  presented  to  the  Senators  now,  or  after  the  Con- 
ference. 

Mr.  Peck,    of  Hamlin:     I  should  say  now,  Mr.  Chairman. 

The  members  of  the  Convention  were  thereupon  presented 
informally,  to  the  Committee,  consisting  of  United  States  Senators 
Stewart,  of  Nevada,  and  Reagan,  of  Texas. 

Senator  Stewart:  Gentleman,  the  Committee  is  here  to  get 
information.  We  want  to  know  how  you  farmers  are  situated  with 
regard  to  supply  of  moisture  for  raising  crops,  what  the  deficiency 
is  and  what  the  means  are  of  supplying  that  deficiency  by  artificial 
means,  artesian  wells,  stored  water,  rivers,  etc.,  and  we  would  like 
to  have  you  go  through  rapidly,  from  different  sections  of  the  State, 
giving  a  short  statement  of  the  situation  there — whether  there  is 
sufficient  rain-fall,  and  if  not,  where  you  get  water,  or  can  get  water, 
to  supply  that  defect.  To  collect  that  information  as  rapidly  as 
possible,  we  will  hear  those  of  you  who  have  been  selected  from 
different  sections  of  the  State,  right  now,  and  the  shorthand  reporter 
will  take  it  down,  and  if  we  do  not  get  through  during  your  vacation 
here,  why  we  won't  interrupt  the  proceedings  of  the  Convention, 
but  will  go  in  one  of  the  side  rooms  and  hear  any  further  persons 
who  have  any  information  to  give. 

A  large  number  of  the  members  of  the  Convention  here  made 
statements  to  the  Senatorial  Committee  with  respect  to  the  lack 
of  rain-fall  in  their  respective  localities  and  the  urgent  need  of 
irrigation  as  a  means  whereby  to  supply  the  needed  moisture. 

The  President  'of  the  Convention:     The  Convention  will  re- 


VISIT  FROM  UNITED  STATES  SENATORS  467 

assemble  at  half-past  seven  o'clock  this  evening,  and  in  the  mean- 
time the  Senators  w,ill  make  an  address  to  the  citizens  and  members. 

The  Chairman  of  the  Conference:  Gentlemen,  I  will  introduce 
to  you  Senator  Stewart,  of  Nevada,  who  will  make  you  an  address 
regarding  irrigation. 

Senator  Stewart  addressed  the  Convention  upon  the  subjects 
of  Irrigation  and  the  Demonetization  of  Silver,  and  was  followed  by 
Senator  Reagan,  who  occupied  the  attention  of  the  Convention, 
briefly,  with  remarks  upon  the  same  topics. 

The  Chairman  of  the  Conference:  Gentleman,  if  there  is 
nothing  more  to  come  before  us  we  will  stand  adjourned  informally. 

Mr.  Hole  of  Beadle:  Mr.  Chairman,  as  an  expression  of  this 
Convention,  I  would  move  you  that  a  vote  of  thanks  be  tendered 
the  Senatorial  Committee,  for  the  time,  consideration  and  attention 
they  have  given  to  our  State. 

The  motion  received  a  second,  and,  upon  being  put  to  a  vote, 
was  declared  unanimously  carried. 

The  Chairman  of  the  Conference:  Gentlemen,  if  there  is  noth- 
ing further,  we  will  stand  adjourned. 

The  President  of  the  Convention:  The  Convention  vill  meet 
at  half-past  seven  o'clock,  promptly,  this  evening. 

Recess  taken  until  7:30  o'clock  P.  M. 

The  Convention  reassembled  at  7:30  o'clock  P.  M.,  and  was 
called  to  order,  with  President  Edgerton  in  the  chair. 

The  President  of  the  Convention:     I  will  state  to  the  Conven- 
tion that  I  telegraphed  Governor  Mellette  with  reference  ; 
question  of  pay  of  the  delegates,  this  forenoon,  and  have  received 
the  following  answer: 

"Richardson   has  sent   his  Chief  Clerk   to  settle  Convention 
claims.     Has  no  disposition  except  to  accommodate  and  do  « 
thing  in  business  manner.     Train  was  late,  so  Clerk  may  n<>; 
there  till  tomorrow.     He  will  make  everything  right." 

So  it  is  evident  he  will  reach  here  tomorrow  night  from  Bismarck 
and  settle  with  the  delegates  to  the  amount  of  the  appropriation. 
I  suppose. 

It  is  evident  to  my  own  mind,  from  what  I  have  seen  today, 
that  we  cannot  get  through  with  the  business  of  the  Com* 
before  tomorrow  afternoon  sometime^  and  that  then  tin-  Clerk  \\ill 
have  to  take  some  hours  to  complete  the  enrollment,  and  that  the 


468  SOUTH  DAKOTA  DEBATES,  1889 

Constitution  will  not  be  ready  for  the  signatures  of  the  delegates 
before  Monday  forenoon.  It  is  my  own  opinion  that  there  is  no 
possibility  of  our  getting  away  from  here  until  Monday  afternoon  or 
Tuesday  morning. 

The  invitation  that  was  extended  to  the  Convention  and  ac- 
cepted by  the  Convention  to  go  to  Spirit  Lake  tomorrow  afternoon 
and  return  Monday  morning  probably  will  not  interfere  with  our 
business  here  at  all.  Even  if  we  finish  our  business  by  the  middle 
of  the  afternoon  tomorrow,  it  will  take  all  of  tomorrow  afternoon 
and  possibly  Monday  forenoon  to  complete  the  enrollment,  so  that 
we  will  be  ready  to  sign  the  Constitution.  It  will  therefore  be  pos- 
sible for  all  the  delegates  that  desire  to,  to  be  absent  over  Sunday. 

The  question  before  the  Convention  now  is  upon  the  motion 
of  Mr.  Hole  that  Sections  19  and  20  of  the  report  of  the  Committee 
on  Schedule,  be  adopted;  to  that  Mr.  Williams,  of  Bon  Homme, 
has  moved  an  amendment  and  the  amendment  is  before  the  Con- 
vention. Is  the  Convention  ready  for  the  question? 

Mr.  Hole,  of  Beadle:  Mr.  President ;  I  merely  want  to  say  this: 
It  seems  that  this  was  reconsidered  under  a  misapprehension  of 
facts.  The  gentlemen  from  Pennington  having  conceived  the 
idea,  and  having  promulgated  it  after  its  conception,  that  there 
was  a  conflict  and  that  the  Schedule  as  adopted  would  compel  an 
election  of  county  officers  this  fall.  By  what  process  of  reasoning, 
by  what  process  of  reading  or  by  whatever  process  he  may  have 
reached  this  conclusion,  I  cannot  guess,  but  I  merely  want  to  read 
the  law  as  provided  in  the  Schedule  and  I  will  call  your  attention 
to  Section  20  as  laid  down  in  the  Schedule. 

That  the  first  general  election  under  the  provisions  of  this 
Constitution,  shall  be  held  on  the  first  Tuesday  after  the  first  Mon- 
day in  November,  1890,  and  every  two  years  thereafter. 

And  Section  5  of  Article  IX  of  the  Constitution,  reads  as 
follows : 

In  each  organized  county,  at  the  first  general  election  held 
after  the  admission  of  the  State  of  South  Dakota  into  the  Union 
and  every  two  years  thereafter,  there  shall  be  elected  a  Clerk  of 
the  Court," — and  then  enumerating  the  county  officers. 

Now,  the  purpose  of  writing  Section  20  was  to  leave  that  so 
there  was  no  possibility  of  doubt,  and  if  the  English  language  can 
make  it  more  clear,  let  us  clear  it  up,  but  I  don't  think  it  is  possible 
I  don't  think  it  was  in  the  mind  of  any  member  of  the  Convention 


FIRST  GENERAL  ELECTION  469 

that  such  a  thing  was  possible.  I  think  this  reconsideration  was, 
not  exactly  what  we  call  a  lawyer's  trick,  because  lawyers  never 
know  when  they  are  beat,  but  it  was  putting  it  somewhat  in  this 
way :  A  delegate  was*  acting  the  part  of  an  attorney  in  the  matter 
more  than  acting  the  part  of  a  proper  reconsideration,  unle:  s  the  re- 
consideration would  cover  all  the  grounds.  Now,  under  the  re- 
consideration, as  made,  I  understand  the  only  question  before  us 
is  the  question  of  Section  20  in  the  Schedu  e  and  Section  5  of  Article 
IX  in  the  Constitution.  I  understand  from  the  mover  of  the  ques- 
tion to  reconsider,  that  that  is  the  only  question  before  the  Con- 
vention. 

Mr.  Wood,  of  Pennington:  Mr.  President ;  I  will  say  now  that 
I  hope  each  member  of  the  Convention  will  turn  to  Section  20  of 
the  Schedule  and  Ordinance  report,  and  if  any  gentleman  of  this 
Convention  can  tell  me  where  we  get  the  power  or  authority  to 
make  the  declarations  contained  in  that  Section,  then  I  will  say 
I  am  wholly  unable  to  construe  the  English  language  at  all.  That 
is  pure,  straight,  unadulterated  legislation.  There  isn't  anything 
else  about  Section  20,  except  the  purest  legislation;  it  is  not  at  all 
necessary  to  carry  into  effect  the  provisions  of  the  Omnibus  Bill ; 
not  at  all  necessary  to  enact,  to  go  into  the  Union  under  this  Con- 
stitution, and  we  have  no  authority  anywhere  for  enacting  it.  Then 
I  say  that  Section  20  should  not  be  enacted  by  this  Constitutional 
Convention,  and  for  myself,  I  will  never  put  myself  on  record  as 
supporting  a  measure  of  that  kind.  What  is  Section  20?  It  is  this: 

That  the  first  general  election  under  the  provisions  of  this 
Constitution,  shall  be  held  on  the  first  Tuesday  after  the  first 
Mondav,  in  November,  1890,  and  every  two  years  thereafter." 

What  right  have  we  to  say  when  the  first  general  election 
shall  be?  Are  we  given  the  power  to  legislate?  I  think  not  in  any 
sense  or  to  any  extent ;  but  that  is  a  very  important  legislative  pro- 
vision. Where  do  we  get  power  to  act?  What  is  our  mandate  of 
that  nature  good  for?  Perfectly  void  and  nugatory. 

As  to  the  election  of  county  officers  in  November,  I  \\ill  not 
take  up  much  time.     !  will  call  attention  first,  lu>\\  wi-r,  to  S, 
4  of  the  report  of  the  Committee  on  Schedule  and  Onlinance. 

All  officers,  civil  and  military,  now  holding  thru   oth\  c- 
appointments  in  this  Territory,  under  tlu-  authority  of  the  UmU-d 
States,  or  under  the  authority  of  the  Tcrritorv  of  Dakota,  shall 
continue  to  hold  and  exen  isr  tlu-ir  n-sju-i  tivi-  oth»  r>  ami  ni'i"»int- 
ments  until  superseded  under  this  Constitution." 


470  SOUTH  DAKOTA  DEBATES,   1889 

Now,  of  course  that  would  be  the  effect,  in  the  absence  of  any 
provision  of  that  kind.  However,  the  provision  is  here  and  has 
been  adopted ;  a  very  salutary  and  beneficial  one.  They  shall  hold 
their  offices  until  superseded  under  this  Constitution.  When  do 
we  become  a  State?  I  will  read  the  latter  part  of  Section  8,  of  the 
Omnibus  Bill: 

And  if  the  Constitutions  and  governments  of  said  proposed 
States  "are  republican  in  form,  and  if  all  the  provisions  of  this  Act 
have  been  complied  with  in  the  formation  thereof,  it  shall  be  the 
duty  of  the  President  of  the  United  States  to  issue  his  proclamation 
announcing  the  result  of  the  election  in  each,  and  thereupon  the 
proposed  States  which  have  adopted  Constitations  and  formed 
State  governments  as  herein  provided  shall  be  deemed  admitted 
by  Congress  into  the  Union  under  and  by  virtue  of  this  Action 
an  equal  footing  with  the  original  States,  from,  and  after  the  date 
of  said  proclamation." 

Now  I  say  this,  and  in  connection  with  that  read,  I  want  to 
see  what  the  Convention  may  think  of  it,  that  if  on  the  first  day  of 
October,  the  Constitution  which  we  submit,  and  that  is,  the  Con- 
stitution of  1885  as  amended  by  us  under  the  Omnibus  Bill,  re- 
ceives a  majority  of  all  the  votes  cast  in  South  Dakota,  then  we  are 
a  State  from  and  after  that  date  That  is  an  accomplished  fact ; 
v  e  are  a  State  and  have  existence  as  such  from  that  date,  as  soon 
as  the  last  vote  is  cast,  if  there  is  a  majority  for  that  Constitution. 
Then  we  become  a  State  by  operation  of  law,  at  that  instant.  That 
fact  is  declared  later,  by  proclamation. 

Mr.  Wood:  My  position  is  this:  The  Constitution  declares 
Section  4  of  Article  7  that  all  general  elections  shall  be  biennial. 
General  elections  as  defined  by  the  statute  are  biennial  elections, 
they  are  both  provided  for  by  law.  Yet,  when  we  come  into  the 
Union  under  the  Constitution  that  wrill  be  the  primary  law.  It  will 
take  the  place  of  the  statutes.  Hence  the  statutes  which  declares 
the  annual  election  must  give  way  to  the  Constitution  because  that 
provides  that  all  general  elections  are  biennial  or  should  be.  These 
elections  are  either.  Being  general,  then  the  Constitution  and 
Article  IX  says  what  shall  be  done.  If  this  is  a  general  election 
then  it  wrill  be  known  as  a  general  election  after  we  come  into  the 
Union.  Being  known  as  a  general  election  we  have  got  to  elect 
county  officers.  I  think  that  is  sufficiently  clear.  I  think  I  have 
defined  the  reason  that  I  take  this  position.  In  conclusion  I  desire 
to  say  this:  The  Constitution  fixes  the  term  of  office  of  the  Gov- 


MR.  WOOD'S  V i n\vs  471 


ernor  at  two  years.  The  people  of  this  Territory  by  practically 
unanimous  vote  ratified  the  Constitution  and  must  ratify  it 
before  it  becomes  our  organic  law.  We  are  not  under  this  Consti- 
tution, but  will  be  after  the  first  of  October  next,  now,  and  that  is 
the  primary  law  after  the  first  of  October  next  then  the  tenure  of 
office  of  the  Governor  and  these  other  political  officers  is  two  years. 
If  we  have  the  power  to  extend  the  term"  twenty-seven  months  we 
can,  with  the  same  propriety  and  with  the  same  legal  force  extend 
it  twenty-seven  years.  There  is  not  a  particle  of  difference  in  the 
principle.  If  there  is  any  difference  in  the  principle  I  think  that 
some  member  of  the  Convention  would  explain  the  difference  t  > 
me  for  I  am  not  able  to  detect  it.  But,  they  say  "how  arc  you 
going  to  cut  their  tenure  of  office  down — that  is  under  the  Constitu- 
tion?" I  say  in  answer,  we  are  not  now  under  the  Constitution.  We 
derive  our  powers  from  the  Omnibus  Bill,  not  from  the  Constitution. 
The  Omnibus  Bill  says  we  can  amend  the  Constitution.  All  the 
power  we  have  got  is  contained  in  the  Omnibus  Bill  and  where  there 
is  any  doubt  of  our  position  we  must  look  to  them  and  nothiru 
It  prevents  our  amending  the  Constitution  except  in  certain  par- 
ticulars and  parts.  They  say  you  will  have  two  elections.  I  say 
this,  that  there  is  no  way  of  preventing  it  that  I  know  of. 

A  Voice:     Have  the  Legislature  amend  it. 

Mr.  Wood:  I  say  we  do  not  want  to  treat  ourselves  and  our 
constituents  in  that  manner.  We  do  not  want  to  cut  the  Comti- 
tution  in  that  manner.  You  can  avoid  it  by  saying  that  th. 
ernor  and  those  other  State  officers  shall  hold  their  office  until  the 
first  day  of  January,  1891.  That  is  the  way  to  avoid  it  ;  tlu>n  wo 
will  elect  them  in  1890  when  these  other  officers  can  be  e!ec  ted  at 
the  same  time.  That  is  general  election  under  the  statutes. 

Mr.  Caldwell:  I  can  state  it  as  a  fact  that  there  is  no  lav:  in 
this  Territory  fixing  any  particular  significance  to  the  expi 
"general  election"  or  to  the  expression  "annual  election".  The 
original  la  A-  was  for  a  particular  purpose.  It  was  in  order  to  bridge 
over  a  scheme  in  reference  to  some  county  orgunixatimi.  It  was 
enacted  that  an  election  held  on  the  even  numbered  years  should  be 
called  general  election  and  those  held  on  the  odd  nunrf 
should  be  called  annual  election.  That  particular  provision  of  the 
law  which  has  been  enacted  or  amended,  Chapter  27  of  the  political 
Code  was  repealed, — the  entile  Section  was  repealed  taking  along 
with  it,  of  course,  the  amendment  of  1881.  But  it  EO  liappens  that 


472  SOUTH  DAKOTA  DEBATES,  1889 

there  are  places  throughout  the  statutes  where  the  term  is  used  with 
a  significance  given  to  it  by  that  section  which  was  repealed.  There 
was  certain  things  prescribed  to  be  done  on  general  election,  so  that 
the  compilers  of  the  law,  in  order  to  establish  the  use  of  the  term 
where  stated  retained  this  particular  provision  which  has  been 
repealed.  At  the  last  session  of  the  Legislature  they  undertook  to 
get  it  enacted,  because  it  ought  to  be  enacted,  but  it  is  not  enacted. 
And  by  reason  of  its  being  in  the  compiled  lawrs  it  is  not  law  there- 
fore. Because  of  the  appearance  of  the  statute  in  that  place  can- 
not make  it  law.  Because  all  the  validity  which  the  compiled  laws 
is  merely  that  they  are  to  be  accepted  prima  facie  evidence  of  the 
law  as  it  is.  But  in  the  case  of  conflict  the  compiled  laws  and  the 
special  laws  of  any  particular  legislative  assembly  those  special 
laws  are  to  control  and  the  compiled  laws  stand  for  naught.  I 
say  it  is  a  positive  fact  that  this  statute  defining  general  election 
and  annual  election  have  actually  been  stricken  from  the  statutes 
of  the  Territory.  I  simply  would  say  to  the  gentleman  that  if  it 
didn't  cut  any  figure  he  ought  to  know  what  the  state  of  the  case 
is. 

Mr.  Wood:  I  will  not  dispute  the  existance  of  such  a  law. 
I  will  declare  I  have  never  seen  it.  Inasmuch  as  the  old  act  has 
been  carried  forward  in  the  compiled  laws  it  is  prima  facie  evidenc  e 
at  least  of  the  law  of  the  land  and  we  ^  ill  take  the  prima  facie  evi- 
dence until  we  get  something  besides  the  word  of  the  gentleman 
from  Minnehaha  county,  because  in  legal  matters  the  statutes 
themselves  are  evidence.  The  gentleman  asks  if  my  position  v  ill 
be  changed  if  I  could  be  shown  that  the  Legislature  did  repeal  the 
law  of  1881  defining  the  difference  between  general  and  annual 
elections.  I  stated  then  that  it  would  make  all  the  difference  in 
the  world.  I  did  not  get  the  idea  as  I  do  now.  It  will  make  no 
difference  because  the  statutes  still  provides  for  an  election  each 
year.  The  even  years  under  the  statutes  of  the  Territory  we  elect 
County  Commissioners,  Justice  of  the  Peace,  etc.  On  the  odd 
numbered  years  we  elect  under  the  Constitution,  we  will  be  under 
the  Constitution  when  these  elections  become  material  or  im- 
portant. That  election  then,  under  the  Constitution  is  the  general 
election  because  it  is  biennial.  I  believe  that  will  define  the  posi- 
tion that  I  have  taken  so  far  as  the  gentleman  from  Minnehaha  is 
concerned. 

Mr.  Humphrey:  I  understood  you  to  say  that  for  the  election 
irrespective  of  whether  the  President  sees  fit  to  admit  us  or  not  by 


DI.BAI  BS  47.> 


proclamation.  Oh  no,  I  say  that  we  shall  be  admitted  by  Congress 
— admitted  into  the  Union.  Does  the  proclamation  create  a  State? 
We  created  it  ourselves  under  the  power  given  us  by  this  Ait  <>t 
Congress.  The  President  proclaims  the  fact;  it  is  by  virtue  of 
proclamntion  of  the  fact.  Then  we  are  deemed  admitted  to  equal 
footings  with  the  original  States.  The  President  cannot  by  proc- 
lamation create  a  State.  He  can  declare  the  fact  simply. 

A  Voice:     When  are  we  deemed  admitted  into  the  Union? 

Mr.  Willis:  We  are  deemed  to  be  in  the  Union  as  a  State,  we 
are  a  State  before  we  are  admitted. 

Mr.  Humphrey:  You  deem  then  that  we  are  a  State  of  the 
Union  ? 

Mr.  Caldwell:  I  will  make  this  distinction,  if  the  gentleman 
wishes  to  make  an  answer  he  has  the  right  to  the  floor  when  I  get 
through.  I  will  state  this:  The  President  by  his  proclamation 
does  not  create  a  state.  This  is  nonsense  of  the  very  worst  kind. 
If  the  gentleman  prefers  to  take  such  a  place  I  wish  to  make  a  state- 
ment on  the  floor  of  this  body.  I  say  that  we,  ourselves,  form  the 
state  and  make  it ;  but  we  have  got  to  have  the  people's  authority 
so  to  do.  Where  is  the  source  of  power  from  which  we  derive  that 
authority?  The  Congress  of  the  United  States.  Here  is  our 
enumerated  powers  (indicating  a  copy  of  the  Omnibus  Bill).  What 
is  the  last  act  that  we  can  perform?  It  is  the  casting  of  the  vote 
for  the  ratification  of  this  Constitution.  When  the  last  poll  is 
closed,  if  a  majority  of  those  ballots  are  in  favor  of  this  Constitution, 
if  it  is  republican  in  form,  we  are  a  State.  But  we  are  not  a  State 
of  the  Federal  Union  until  the  fact  is  declared  by  the  President. 

Mr.  Humphrey:  We  practically  are  overstepping  our  powers 
provided  by  the  Omnibus  Bill .  To  illustrate  it :  Suppose  we  change 
the  term  of  office  of  the  State  officers  and  on  that  ground  tlu-  I'IVM- 
dent  should  refuse  to  issue  a  proclamation.  Would  wo  still  be 
a  State? 

Mr.  Wood:     No,     Sir;  for  this  reason,  wo  havo  tranv 
the  powers  given  us.     We  have  not  performed  tho  ;u  t  \\o  have  the 
legal  right  to  perform.       Therefore  wo  havo  destroyed  all  that  wo 
did.     But  if  we  do  comply  with  tho  provisions  oi  tins  ait,  tl 
President  of  this  United  States  cannot  legally  rofiiM-  to  dot  ' 
a  State  of  the  Union.     If  ho  lawfully  refuses  it  it  is  b*»use  v. 
transgressed  our  power. 

Mr.  Humphrey:     Would  wo  still  be  a  Si 


474  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Wood:  Most  certainly  ;  I  think  that  when  the  gentleman 
understands  fully  the  legal  positions  he  will  agree  with  me  in  this. 
I  say  if  we  comply  with  the  provisions  of  the  Constitution,  we  go 
to  work  and  comply  with  that  act,  we  are  a  State  and  if  the  Presi- 
dent should  fail  — unlawfully  fail — to  declare  that  fact,  to  perform 
his  lawful  duty,  it  would  not  change  the  facts  that  we  have,  under 
the  law,  formed  and  created  a  soverign  State  simply  because  public 
officers  fail  to  perform  their  duty  never  changes  the  legal  rights  of 
anybody.  If  it  did,  then  legal  rights  can  be  changed  with  great 
facility. 

Mr.  Willis:  I  want  to  rise  to  suggest  as  a  mere  piece  of  infor- 
mation that  the  supposition  which  the  gentleman  has  made  every- 
body knows,  and  nobody  better  than  he  and  others  here,  it  is  an 
utterly  idle  supposition..  That  any  man  would  not  do  his  formal 
duty  after  everything  has  been  performed  on  our  part  under  the 
Omnibus  Bill ;  that  the  President  would  fail  to  perform  his  part 
of  that  contract ;  it  is  an  utterly  idle  supposition. 

A  Voice:     Who  draws  that  supposition? 

Mr.  Wood:     I    never  had  any  such  supposition. 

Mr.  Willis :     No  Sir ;  I  am  defending  the  gentleman.    (Laughter) 

Mr.  Dickinson:  I  wish  to  call  attention  to  this  fact:  The 
whole  strength  of  the  argument  that  has  been  made  lies  upon  a 
very  violent  supposition  and  that  is  the  supposition  that  the  elec- 
tion shall  be  completed,  the  returns  made,  and  the  Constitution 
properly  forwarded  to  Washington  to  be  acted  upon  by  the  legal 
authority  there  and  recommended  by  the  President  as  having 
been  promulgated  in  accordance  with  the  Enabling  Act.  In  the 
face  of  all  that  the  President  may  hesitate  to  make  his  proclama- 
tion, this  is  something  which  not  one  delegate  on  this  floor  doubts 
but  that  within  a  month,  after  all  that  process  shall  have  been 
gone  through  and  we  shall  have  been  fully  admitted  by  proclama- 
tion of  the  President ;  otherwise  there  is  no  effect  whatever  t'o 
the  argument  made  with  reference  to  the  contingency  that  county 
officers  may  have  to  be  elected  this  fall.  The  Constitution  provides 
that  the  County  Auditor  shall  be  elected  at  the  first  general  election 
after  wre  become  a  State.  But  the  one  argument  advanced  that 
we  shall  become  a  State  before  the  President  issues  his  proclamation 
is  wasted  argument.  The  gentleman  admits  that  we  are  admitted 
when  the  President  issues  his  proclamation ;  I  say  the  whole  argu- 
ment relies  upon  a  violent  proposition.  I  do  not  think  that  propo- 


MR.   DICKINSON  475 


.sition  has  entered  into  the  minds  of  any  other  gentleman  upon  the 
floor  unless  it  is  the  gentleman  himself;  it  certainly  did  not  enter 
into  the  minds  of  any  of  -the  members  of  the  Committee  when  the 
report  was  gotten  up.  This  Article  XX  therefore  was  passed  upon  that 
understanding  that  the  Committee  believed  that  it  was  impos  ible 
for  us  before  admission  into  the  Union  before  the  elect-ion  in  Novem- 
ber and  that  therefore  the  first  general  election  under  the  Con- 
stitution after  our  admission  as  a  State  into  the  Union  would  be 
in  1890;  that  is  what  we  contemplated  and  nothing  else.  No  one 
had  any  idea  that  the  county  officers  were  to  be  elected  this  fall. 

Then  in  1890  there  would  be. an  election  of  all  State  and  county 

officers.     While  I  have  the  floor  I  wish  to  call  attention  to  the  fact — 

A  Voice:     Did  not  the  gentleman  from  Pennington  who  has 

supported  this  amendment  used  that  as  his  strongest  argument 

for  shortening  the  tenure  of  office  of  the  county  and  State  officers. 

Mr.  Dickinson:       The  argument  brought  before  this  Convention 

was,  that  we  were  going  to  precipitate  an  election  of  the  county 

officers  upon  the  State  this  fall. 

Mr.  Neill:     How  does  this  shorten  their  term? 
Mr.  Dickinson:     A  year. 

Mr.  Wood:     Where  do  they  get  the  power  to  make  the  tenure 
of  office  of  the  Governor  twenty-seven  months? 

Mr.   Dickinson:     Where  do  we  get  the  power  to  make  the 
tenure  of  office  of  the  Governor  seventeen  months? 
Mr.  Wood:     From  the  Omnibus  Bill. 

Mr.  Dickinson:     We  get  it  from  the  Constitution,  the  people 
of   South   Dakota   formally   adopted.     The   Constitution   of    188 
which  we  have  no  power  to  change,  provides  for  two  year* ;  there's 
where  we  get  our  power.     It  seems  to  me  a  strange  thing  that 
anyone  should  raise  the  question  on  this  floor;  the  Enabln 
cannot  go  before  the  time  it  would  have  life  under  the  Constitution 
and  before  the  time  which  the  Constitution  would  make  it  le^al  to 
say,  submit  the  question  of  the  election  of  Senators  to  your 
lature.     It  cuts  right  to  the  lien  at  least  two  months  until  the  time 
came  when  they  .could  regularly  take  their  pla.es  under  tb 
stitution.     There  is  the  difficulty  to  be  met  wlm  h  ev 
view  the  question,  and  the  Enabling  Act   provides  f..r  tlu-e  two 
months.     We  are  to  get  the  Legislature  before  the  time  whu-h  the 
Constitution    has  provided  for.     It  gives  a  life  to  the  ^.vernment 
for  these  two  months,  until  the  time  comes  when  the  «.tVu  ers  \vould 


476  SOUTH  DAKOTA  DEBATES,   1889 

regularly  take  their  places  under  the  Constitution.  There  is  that 
difficulty  to  be  met.  The  authority  of  the  Enabling  Act  is  un- 
questioned. I  can't  see  where  the  authority  comes  in  for  making 
the  change  as  proposed  by  the  gentleman  and  those  who  are  with 
him  at  this  time.  We  have  endeavored  as  closely  as  possible  to  go 
by  the  provisions  of  the  Enabling  Act  and  have  the  officers  in  their 
places  for  the  term  for  which  the  Constitution,  made  in  1885,  pro- 
vides, and  we  believe  there  is  a  great  risk  in  making  any  change. 
I  was  about  to  say,  however,  no  sufficient  answer  has  been  given 
to  the  question  which  I  raised  this  morning.  If  by  the  framers  of 
the  Constitution  of  1885  it  was  intended  that  the  general  elections  - 
should  be  on  even  years,  why  did  they  in  that  section  say:  "All 
general  election  shall  be  biennial"?  The  elections  on  even  years 
could  not  be  less  than  that.  Was  it  not  intended  to  apply  to  the 
elections  that  came  on  the  odd  years  ? 

Mr.  Wood,  of  Pennington:  Which  does  the  Constitution  refer 
to? 

Mr.  Dickinson,  of  Day:     It  refers  to  both. 

Mr.  Wood,  of  Pennington:     That  is  what  I  contend. 

Mr.  Dickinson,  of  Day:  It  also  seems  to  me  that  sufficient 
attention  has  not  been  given  to  the  question  whether  or  not  this 
amendment  is  not  an  actual  amendment  to  the  Constitution, 
tinder  the  guise  of  the  Schedule  and  Ordinance.  It  is  a  virtual 
amendment  to  traffic  in  that  or  meddle  with  it  or  infringe  upon 
it.  Let  us  go  within  the  bounds  of  our  powers  and  leave  that  for 
the  Legislature.  I  have  been  surprised  in  talking  with  members, 
in  discussing  here,  to^find  the  prevalence  of  this  spirit — "We  are 
going  to  have  this  any  way,  whatever  the  provisions  of  the  Con- 
stitutions may  be;  whatever  is  Constitutional  and  legalin  this 
matter,  we  ought  to  have  an  election  only  once  in  two  years,  and 
we  are  going  to  have  it  any  way."  I  will  not  yield  to  anyone  upon 
this  floor  in  the  desire  that  there  shall  be  only  one  election  each 
two  years,  but  I  believe  this  is  the  right  and  the  only  constitutional 
way,  though  I  can  make  allowance  for  that  spirit  which  says,  "We 
are  going  to  have  it  any  way,  because  the  people  want  it".  What 
we  have  a  right  to  do  here  is  that  which  will  be  perfectly  safe — 
that  does  not  run  the  risk  of  leading  us  into  litigation  if  we  adopt 
it  and  recommend  it. 

Mr.  Sterling,  of  Spink:     Mr.  President;  the  argument  of  the 


STERI.INV,   ANSWKKS   DP-KIN 

gentleman  last  upon  the  floor  is  largely  upon  the  same  line  as  his 
argument  upon  the  previous  question,  when  the  crick-rue  of  the 
fact  is  brought  home  to  the  notice  of  the  President.  The  President 
has  what?  He  has  judicial  discretion  in  that?  Not  at  all.  His 
act  is  in  the  nature  of  a  ministerial  act;- he  proclaims  an  exiting 
fact ;  then  we  are  to  be  deemed  ADMITTED  into  the  Union  as  a  State 
We  are  a  State  before.  The  fact  exists,  and  the  proclamation  of  that 
fact  then  places  us  into  the  Union  on  an  equal  footing  with  all  the 
other  States,  and  we  are  not  into  the  Union  on  an  equal  footing 
until  that  proclamation  is  made  by  the  President.  We  declare 
ourselves  a  State  by  our  vote.  There  are  two  provisions  of  the 
Constitution  that  we  cannot  change.  One  is  that  the  Governor 
shall  hold  his  office  for  two  years.  That  don't  mean  twenty - 
long  months.  It  means  two  years  or  less;  it  don't  mean  more. 
Another  provision  is  that  all  general  elections  shall  be  biennial — 
once  in  two  years.  What  is  the  effect  of  these  provisions?  '  Simply 
this,  in  my  judgment:  A  general  election  and  an  annual  election 
are  each  denned  by  our  law — the  law  under  which  we  were  all 
living  and  paying  our  allegiance  wrhen  the  Convention  of  18&5 
framed  this  Constitution.  The  statute  provides  for  two  elections, 
and  did  then,  to-wit:  An  annual  election  on  odd-numbered  years,, 
a  general  election  on  even-numbered  years.  Then  we  have  an 
election,  and  these  elections  occur  in  November — the  first  Tuesday 
after  the  first  Monday  of  that  month.  Now,  the  Constitution  de- 
claring that  general  elections  are  biennial,  the  statute  declaring 
that  there  are  two  kinds  of  elections,  "annual"  and  "general".  \ -<>u 
wrill  all  agree  with  me  that  the  statute  must  give  way  to  the  Con- 
stitution, if  the  two  cannot  stand  together.  Now.  if  all  genera' 
tions  must  be  biennial,  and  if  there  is  an  election  each  year,  then 
these  elections  I  do  not  contend  are  annual.  They  are  all  1  icnnial 
hence  it  follows  that  they  must  te  all  general  elections,  and  t Ivy 
are  general  elections,  too,  under  the  Constitution.  Then, 
general  elections,  what  shape  do  we  find  ourselves  in  ''. 

Section   5   of  Article   IX:      In   i  ai  h   or^ani/.r.l  cotffitv,  at   the 
first  general  election  held  after  the  admission  of  the  Sta: 
Dakota  into  the  Union  and  every  two  Years  thereafter,  then-  shall 

ted  a  Clerk  of  the  Court,  Sheriff,  County  Auditor.  K. 
of    Deeds,    Treasurer.    State's    Attorney,    Sur 

Superintendent  of  Schools,  whose  terms  of  .-Hive  n          '  shall 

he  two  years,  and  except  Clerk  of  the  Court  nop  raon  aha! 


478  SOUTH  DAKOTA  DEBATES,  1889 

for  more  than  four  years  in  succession  to  any  of  the  above  named 
offices. 

There  are  all  the  county  officers.  We  see  by  necessary  con- 
struction that  the  November  election  of  1889  provided  by  the 
statutes  of  this  Territory,  is  a  general  election,  because  by  the  time 
this  Constitution,  if  ever  in  force,  will  then  be  in  force.  We  will 
be  a  State  by  that  date  and  that  election  will  be  a  general  election. 
Now,  it  may  be  urged  that  it  will  not  be  proclaimed  sufficiently  early 
for  the  election  notices  to  be  posted.  Whoever  heard  of  an  election 
being  invalidated  for  any  purpose  by  a  failure  to  post  notices?  No 
such  doctrine  was  ever  pronounced  by  any  court  of  respectability,  so 
far  as  I  can  learn.  The  failure  then  to  post  notices  will  not  in- 
validate an  election — will  not  necessarily  void  an  election  if  held. 
Then  I  say  you  will  get  into  a  mess  of  difficulties  that  can  be  just 
as  well  avoided  as  not  by  keeping  ourselves  within  the  limits  cir- 
cumscribed and  laid  down  before  we  came  here.  What  is  that? 
Simply  this:  We  are  electing  what?  We  are  only  electing  Gov- 
ernor, Lieutenant -Governor  and  other  State  officers — this  amend- 
ment has  nothing  to  do  with  the  Judges.  What  tenure  are  we 
giving  them?  The  Constitution  provides  that  the  tenure  of  the 
Governor  shall  be  two  years.  Let's  read  it: 

The  executive  power  shall  be  vested  in  a  Governor,  who  shall 
hold  his  office  two  years,  a  Lieutenant-Governor,  who  shall  be 
elected  at  the  same  time  and  for  the  same  term. 

Does  that  mean  twenty-seven  months?  We  are  a  State  if 
the  Constitution  receives  a  majority  of  all  the  votes  cast,  from  and 
after  the  first  of  October,  although  that  fact  may  not  be  declared 
for  some  time  after — yet  we  cannot  presume  that  this  proclamation 
will  be  delayed  for  many  days.  It  seems  to  me  it  is  not  a  rash  pre- 
sumption that  the  fact  will  be  declared  of  our  admission  before  the 
twentieth  day  of  October.  The  President's  duty  is  to  do  it.  That 
being  his  duty  he  will  proclaim  that  fact  of  our  admission  as  early 
as  possible.  Then  if  we  are  a  State  from  the  first  day  of  October 
and  that  fact  is  proclaimed  as  early  as  the  twentieth  of  October  and 
we  are  into  the  Union  on  an  equal  footing  with  the  other  States  on 
the  twentieth  of  October,  I  don't  see  why  that  won't  give  us  time 
to  post  notices.  I  will  say  this:  My  recollection  of  the  statute  is 
this  that  it  only  requires  ten  days  before  the  election  in  each  pre- 
cinct to  post  these  notices  of  election.  If  that  is  true  then  there 
will  be  no  excuse  why  this  election  should  not  be  held  and  all  the 
county  officers  elected.  Some  may  contend  that  there  is  nothing 


WOOD,  EDGERTOX,  DICKINSON  479 

in  the  proposition.     Well    I  am  very  often  in  error — wide  of  the 
mark — but  I  am  sometimes  right,  and  in  this  matter  I  think  I  see 
my  way  sufficiently  clea    to  declare  without  the  fear  of  sucx  < 
contradiction,  that  under  this  Constitution,  it  is  a  biennial  el< 
and  therefore  general.  Then  again — 

Mr.  Neill,  of  Grant:     How  does  that  amendment  obviate  it? 

Mr.  Wood,  of  Pennington:  I  will  tell  you.  Fix  this  tenure  of 
office  so  that  it  will  expire  on  the  first  day  of  Jauuary,  1891.  We 
have  got  to  elect  all  the  county  officers;  it  brings  everything  to- 
gether. In  the  absence  of  this,  and  under  Section  20  of  the  Schedule, 
if  that  section  is  good  for  anything,  we  will  have  to  elect  county 
officers  on  even  numbered  years  and  other  officers  on  odd-numbered 
years. 

The  supporters  of  the  report  contend  that  there  is  one  wa 
get  out  of  the  difficulty,  and  that  is,  for  the  Legislature  to  propose 
an  amendment  to  the  Constitution.  Now,  gentlemen  of  the  Con- 
vention, which  is  the  best — if  that  is  the  way  out  pf  it — v.  hkh 
I  very  much  doubt?  But  suppose  we  could  do  that  and  get  out 
of  this  s crape  in  that  way,  I  submit  this  to  you,  as  the  repre 
tives  of  a  soverign.people,  forming  in  part  and  submitting  in  whole, 
the  organic  law,  is  it  better  to  make  the  tenure  of  office  for  the  first 
term,  which  we  have  got  the  power  to  fix,  at  a  little  over  one  year, 
and  thus  obviate  the  difficulty  and  the"  early  amending  of  our 
organic  law?  You  amend  our  Constitution  as  early  as  that  and 
people  will  say  "We  sent  men  down  there  to  frame  a  Constitution 
that  did  not  understand  their  duties". 

Mr.  Dickinson,  of  Day,  called  to  the  chair. 

Mr.  Edgerton,  of  Davison:     Mr.  President:   Do  I  understand 
the  gentleman  from  Pennington  to  claim  that  we  are  to  ha 
election  on  the  first  of  November,  1889,  by  virtue  of  the  Territorial 
law? 

Mr.  Wood,  of  Pennington:  There  is  an  election  provided  fur, 
yes. 

Mr.  Edgerton,  of  Davison:     I  understand  you  to  claim  then 
that  this  provision  in  the  Schedule  that  we  will  have  no  el< 
after  our  admission  until  the  fall  of  1890,  is  inoperative' 

Mr.  Wood,  of  Pennington:     N«>.  1  say  it  is  legislation. 

Mr.  Edgerton  of  Davison:  Why  is  that  any  more  K-»i>lati«>n 
than  it  is  to  provide  that  the  term  of  office  shall  expire  before  the 
two  years  are  out? 


480  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Wood,  of  Pennington:  For  this  reason:  We  are  not 
holding  this  election  under  the  Constitution.  We  are  empowered 
by  the  Omnibus  Bill  to  provide  for  the  election  of  these  officers, 
and  by  necessary  implication  we  can  fix  the  tenure  of  their  office, 
if  we  do  not  extend  it  beyond  the  limit  fixed  by  he  Constitut  on 
itself. 

Mr.  Edgerton,  of  Davison:  I  understand  you  to  say  that  this 
provision  in  the  Schedule  prohibiting  an  election  after  the  first  of 
October,  1889,  before  the  first  of  November,  1890,  is  inoperative 
bee  use  it  is  legislation?  Now,  I  ask  why  is  there  any  more  legis- 
lation in  that  then  in  the  provision  in  the  same  Schedule,  which 
you  propose,  that  their  term  of  office  shall  expire  for  the  first  time, 
wi-  hin  the  two  yeais? 

Mr.  Wood,  of  Pennington:  Just  this:  We  have  the  power 
under  the  Omnibus  Bill  to  provide  for  the  election  of  these  State 
officers,  but  wre  have  no  power  to  declare  when  and  what  kind  of 
an  election  shall  be  held  in  the  future.  We  are  legislating  now 
for  the  year  1890.  We  have  no  such  power  anywhere. 

Mr.  Edgerton,  of  Davison:  As  I  understand  you,  we  have 
power  then  to  shorten  their  term  of  office  under  the  Omnibus  Bill? 

Mr.  Wood,  of  Pennington:  I  contend  that  this  first  term  of 
office  is  in  our  hands,  if  we  do  not  extend  the  tenure  beyond  the 
maximum  limit  fixed  in  the  Constitution. 

Mr.  Edgerton,  of  Davison:  Do  I  understand  you  to  say  that 
that  provision  that  provides  that  these  office: s  shall  te  superseded 
is  synonymous  with  the  declaration  that  the  State  shall  te  ad- 
mitted on  the  proclamation  of  the  President? 

Mr.  Wood,  of  Pennington:  No,  indeed,  I  did  not  say  syno- 
nymous at  all.  I  read  that  provision  for  the  purpose  of  showing 
that  if  this  election  this  fall  is  a  general  election — if  the  Con:  tit ut ion 
makes  it  a  general  election,  it  will  be  in  force  by  that  time.  I  read 
that  section  for  the  purpose  of  showing  what  became  of  the  county 
officers — that  they  will  be  superseded-  by  the  State  government — 

Mr.  Edgerton,  of  Davison:  I  understand  you  to  say  that  they 
are  necessarily  superseded  because  the  Governor  and  Lieutenant  - 
Governor  are  elected. 

Mr,  Wood,  of  Pennington:  Not  at  all.  I  am  speaking  of 
this  now  independently  of  the  tenure  of  office — as  an  independent 
proposition. 

Mr.  Edgerton,  of  Davison:     You  and  I  do  not  differ  upon  this,  . 


EDGERTOX  AND  WOOD  481 

that  they  may  hold  until  the  first  of  January,  1891,  unless  there  is 
a  direct  provision  that  they  shall  be  superseded — 

Mr.  Wood,  of  Pennington:  Well,  I  am  contending  that  we 
cannot  allow  them  to  hold  beyond  January,  1891. 

Mr.  Edgerton,  of  Davison:  I  meant  that  unless  their  term 
is  cut  short  expressly  by  the  Constitution,  that  the  admission  of 
the  State  won't  shorten  their  term  of  office. 

Mr.  Wood,  of  Pennington:     Yes,  Sir,  that  is  the  position  I  take. 

Mr.  Edgerton,  of  Davison:  The  word  "supersede"  here  means 
that  they  may  hold  until  their  term  expires  unless  there  is  an  ex- 
press provision. 

(EDITORIAL  NOTE — There  is  clearly  an  omission  of  some 
matter  in  the  official  copy  at  this  point. — DOAXE  ROBINSON.) 
********  this  morning,  and  it  is  a  powerful  argu- 
ment in  the  way  in  which  it  is  presented.  When  a  man  expresses 
his  strong  desire  as  being  upon  the  one  side  of  the  question,  and 
makes  the  strongest  possible  argument  upon  directly  the  opposite 
side,  it  has  a  kind  of  a  double-back-action  force, — a  great  deal  more 
force  than  if  his  desire  and  his  argument  were  in  the  same  direction  ; 
but  I  can  give  the  gentleman  credit  for  perfect  candor  in  the  argu- 
ment, although  he  has  expressed  the  strongest  desire  that  these 
elections  should  come  every  two  years  and  has  argued  strongly 
against  the  power  to  hold  the  elections  every  two  years. 

Now,  Mr.  President,  and  gentlemen,  it  seems  to  me — and  I 
can't  look  at  it  in  any  other  way — that  there  is  here  a  great  excess 
of  caution  in  this  matter.  This  fear  of  doing  something  urn 
tutional ;  this  fear  of  making  an  amendment  to  the  Constitution. 
If  there  was  any  attempt  of  that  kind— any  attempt  to  intnihue 
anything  in  the  way  of  an  amendment  to  the  Constitution,  then 
there  might  be  some  fears,  but  I  say  this  can't  be  construed  in  any 
such  light ;  that  it  is  a  provisional  way  of  carrying  this  State  govern- 
ment into  effect  and  that  it  is  quite  customary  in  the  adoption  of 
new  Constitutions  to  provide  that  the  first  term  of  the  State  < 
elected  under  the  Constitution  or  elected  as  provided  for  in  the 
Constitution,  shall  be  for  a  shorter  term  than  the  regular  term  as 
fixed  in  the  Constitution. 

Now  then,  I  say  with  reference  to  this  matter  of  safety 
these  gentlemen  proclaim  so  largely,  that  they  are  willing  to  forego 
every  question  of  what  is  sound  policy  for  us  to.  adopt  in  or. 
State ;  they  are  willing  to  forego  every  item  of  expense  there  is  in 


482  SOUTH  DAKOTA  DEBATES,  1889 

it;  they  are  willing  to  forego  what  the  people  almost  universally 
desire  in  regard  to  the  time  of  these  elections,  all  for  the  question 
of  "safety",  in  which  I  can  see  nothing  whatever.  I  say  in  the  face 
of  the  precedents  that  we  have  in  the  framing  of  other  Constitutions, 
in  the  face  of  the  reasonableness  of  this  thing,  that  this  matter  is 
provisional  and  we  can  surely  provide  that  this  election  may  occur 
in  the  fall  of  1890. 

Mr.  Dickinson,  of  Day:  Has  any  other  Constitutional  Con- 
vention ever  been  tied  down  as  we  are  ? 

Mr.  Sterling,  of  Spink:  I  think  so.  I  don't  see  in  what  par- 
ticular limits  we  are  tied  down,  as  far  as  that  is  concerned.  I  made 
allusion  to  the  Nevada  Constitution  this  morning.  I  have  it  here. 
I  do  not  th'nk  any  trouble  ever  arose  over  it  from  the  fact  that  it 
provided  that  the  terms  of  the  State  officers  should  be  four  years, 
and  then  provided  that  the  term  of  the  officers  first  elected  under 
the  Constitution  should  be  two  years — ju&t  half  that  which  was 
prescribed  as  the  term  generally  for  those  officers. 

Mr.  Hole,  of  Beadle:  In  that  case,  Mr.  Sterling,  it  had  not 
been  subm'tted  and  voted  on? 

Mr.  Sterling,  of  Spink:  I  don't  think  it  had,  but  as  to  that, 
there  is  where'the  gentlemen  this  forenoon  laid  great  stress,  f  om 
the  fact  that  the  Constitutional  Convention  of  1885  elected  State 
officers  for  two  years,  making  an  election  come  again  in  1887,  and 
I  admit  that  were  elected  for  that.  But  suppose  they  did?  As  I 
said  this  morning,  there  is  no  question  as  to  the  interpreta.ion  by 
them  as  to  their  power  under  that  Constitution  for  an  election  to 
come  at  any  other  time,  and  all  the  circumstances  under  which  they 
adopted  that  Constitution  and  that  Schedule  and  Ordinance  show 
that  they  never  considered  the  question  of  the'r  power  to  fix  any 
other  time.  The  Constitution  was  framed,  as  we  all  know,  without 
any  Enabling  Act  back  of  us ;  it  was  not  known  when  we  would  be 
admitted,  but  it  was  thought  we  might  be  admitted  within  two 
years,  and  if  we  were,  then  we  would  have  the  officers  for  State 
government,  and  that  is  all  they  thought  about  it.  There  was  an 
evident  desire,  so  far  as  county  officers  were  concerned,  to  provide 
that  they  should  hold  their  offices  until  the  next  general  election 
after  the  admission  into  the  Union  of  the  State  They  wanted  all 
parties  and  all  factions  organized  to  secure  a  large  vote  upon  that 
Constitution  and  thereby  the  admission  of  the  State  into  the  Union. 
I  can't  see,  Mr.  President,  any  great  danger  in  this  at  all.  I  think 


STERLINGS  OPINION 


gentlemen  magnify  the  danger.  This  very  same  thing  has 
done  before,  and  I  say,  when  the  gentlemen  talk  about  what 
tions  they  had  in  mind  when  they  spoke  of  general  elections .  that 
they  had  in  mind  the  general  election  as  it  was  provided  and  under- 
stood then,  and  I  don't  know  by  what  fiction  the  gentleman  from 
Minnehaha  can  say  that  the  general  election  is  not  in  the  even  num- 
bered years.  It  has  never  been  heard  of,  that  I  know  of,  until  he 
proclaimed  it  upon  this  floor,  and  I  am  satisfied  that  the  members 
of  the  Constitutional  Convention  in  1885,  had  no  other  idea  than  that 
it  was  in  the  even-numbered  years,  and  that  they  provided  that 
the  county  officers  should  be  elected  at  the  first  general  el- 
after  the  admission  of  the  State  into  the  Union.  That  is  when  they 
used  the  words  "general  election"  or  "general  elections"  with  ref- 
erence to  a  particular  year.  They  said  again  that  all  general  elec- 
tions should  be  biennial,  and  I  don't  believe  in  that  other  fiction, 
that  they  used  the  words  "general  election"  then  with  reference 
to  annual  elections. 

Mr.  Humphrey,  of  Faulk:  Mr.  President;  just  one  word. 
First,  as  a  question  of  privilege,  I  would  like  to  assure  the  gentle- 
man from  Aurora,  that  it  was  not  with  the  intention  of  asking  a 
fictitious  question  that  I  asked  the  question  I  did,  but  to  bring  out 
in  as  bold  a  manner  as  possible  the  difference  in  the  positions  taken 
here. 

Now,  as  to  the  power  of  this  Convention  to  extend  the  term 
of  these  officers  to  twenty-seven  months.     The  wording  of  the  Com- 
mittee on  Schedule  may  have  been  unfortunate.     Their  ma 
intention  was  to  provide  that  he  should  hold  his  office  until  his 
successor  had  qualified.     They  had  the  power  to  do  as  they  pleased 
at  that  Convention;  we  have  not.     It  certainly  would  be  tl 
thing  for  us  as  long  as  it  is  in  our  power  to  follow  in  th<  . 
and  follow  in  the  same  line. 

Mr.  Wood,  of  Pennington:     Where  did  this  Convention  get 
the  power  to  make  the  term  of  office  of  the  Governor  twenty 
months  ? 

Mr.  Humphrey,  of  Faulk:     I  don't  say  they  had  the  \ 
do  that.     The  other  way  might  have  l.i-en  the  better  v 
it.     Technically  they  might  not  have  the  power  to  extend 
term  one  month,  any   more  than  to  extend   it    «»ne  year,  1-ut   the 
manifest  purpose  was  simply  to  provide  for  the  oti: 
vacant  a  month  before  or  a  month  after,  but  simply  to  li-.l-i 


484  SOUTH  DAKOTA  DEBATES,  1889 

offices  until  their  successors  had  qualified.  We  can  be  but  safe  in 
following  the  footsteps  of  our  predecessors  in  doing  what  they  did, 
when  they  had  full  power  to  do  what  they  did,  while  we  have  not. 
Mr.  Williams,  of  Bon  Homme:  Mr.  President;  as  this  is  my 
amendment,  I  would  like  to  say  a  word.  The  argument  of  the 
gentleman  from  Day  is  such  that,  while  my  friend  Mr.  Sterling,  I 
will  admit,  shows  a  spirit  of  great  candor,  and  we  can  all  certainly 
give  him  credit  for  it,  I  think  he  is  mistaken,  for  he  agreed  with 
me  upon  this  proposition  for  the  same  thing,  and  that  is,  unless  we 
are  transcending  the  provisions  of  this  Constitution,  that  it  is  not 
a  virtual  amendment  to  the  Constitution.  It  in  no  manner  in- 
fringes upon  one  solitary  section  or  phrase  of  the  Constitution. 
The  position  taken  by  myself  in  framing  that  amendment  was 
that  this  is  only  a  provisional  measure  and  that  it  in  no  manner 
governed  or  controlled  under  the  Constitution,  further  than 
that  the  Constitution  points  out  the  officer,  and  that  is  that  this 
Convention,  by  this  Ordinance,  follows,  the  Constitution  in  the  of- 
ficers to  be  elected,  but  it  is  not  bound  by  the  provisions  of  the 
Constitution  as  to  the  terms  of  office,  and  having  the  power  to  act 
provisionally  we  have  the  power  to  fix  the  term  of  these  provisional 
officers  so  that  their  successors  will  be  elected  under  that  Con- 
stitution at  the  time  we  elect  the  other  officers.  I  cannot  agree 
with  the  position  that  we  must  elect  county  officers  this  fall.  I 
say  we  must  let  them  hold  over,  but  I  think  we  have  the  power  to 
e1ect  them.  It  is  as  we  please  about  that.  Hence,  the  purpose  of 
the  amendment  was  not  to  permit  the  officers  to  hold  over  until 
their  successors  were  elected,  but  the  intent  is  that  the  new  officers 
may  take  their  offices  at  the  same  time  that  the  terms  of  these 
count  officers  expire,  and  that  then  we  will  have  an  election  and 
elect  a  full  set  of  State  officers  and  a  Legislature.  I  wish  now, 
once  more,  to  explain  that  in  1890  we  will  have  to  elect  a  full  set 
of  county  officers.  The  provisions  of  the  report  are  that  the  State 
officers,  and  the  legislators'  terms  shall  expire  in  January,  1892. 
Then  we  are  necessarily  compelled  to  have  an  election  for  the  State 
officers  and  the  Legislature  in  January,  1891 ;  then  in  January,  1892, 
we  will  be  compelled  to  have  an  election  for  county  officers  again, 
and  then  in  January,  1893,  another  election  for  the  Legislature 
and  the  State  officers ;  so  that  the  bill  as  it  comes  from  the  Com- 
mittee virtually  provides  and  coerces  the  Legislature  into  pro- 
viding for  an  election  every  year,  and  that  is  the  thing  the  amend- 


WILLIAMS  AND  VAX  BUSKIRK  485 

ment  is  intended  to  obviate — to  provide  for  these  provisional 
officers  to  hold  their  terms  for  only  such  a  time  that  they  will  ex- 
pire with  the  county  officers,  in  1891. 

As  to  the  amendment  to  the  bill  forcing  an  amendment  to 
the  Constitution,  I  can't  see  where  the  gentleman  gets  his  idea. 

I  will  say  this,  further,  that  the  sentiment  of  the  people  now 
and  the  sentiment  of  the  people  in  1885,  was  that  we  have  only  a 
general  election  once  in  two  years ;  and  I  say  further,  whatever 
the  sentiment  of  the  people  at  large,  if  you  elect  a  convention  of 
delegates,  that  the  Convention  carries  with  it  the  sentiment  of 
the  people.  There  can  be  no  question  of  a  doubt  but  what  that 
sentiment  was  carried  into  the  Convention  and  operated  upon  by 
the  members  of  the  Convention,  and  ought  to  be  in  this  case. 

Mr.  Van  Buskirk,  of  Codington:  Mr.  President;  I  wish  the 
Convention  would  bear  with  me  just  one  moment.  I  had  hoped 
that  some  member  of  the  Convention  would  reach  one  of  the  prop- 
ositions that  is  troubling  me.  The  question  occurs  to  me,  if  it  had 
not  been  for  the  provisions  of  the  Omnibus  Bill,  under  and  by 
virtue  of  what  law  or  authority  would  we  have  elected  these  State 
officers  at  all?  I  am  a  little  at  sea  as  to  what  we  would  have  to 
do  except  for  that  bill,  in  the  election  of  State  officers  at  this  time. 
I  would  ask  gentlemen  of  the  Convention  to  point  out  under  what 
law  they  would  hold  the  election  for  Governor,  except  for  the  pro- 
visions of  this  Omnibus  Bill?  When  would  you  have  held  that 
election?  I  am  unable  to  find  out  from  anything  that  has  been 
said  here.  By  virtue  of  what  authority  would  we  have  elected 
these  officers,  or  at  what  time  would  we  have  elected  them?  I 
apprehend  that  Congress  when  it  passed  that  act  understood  very 
well  that  there  was  a  statute  in  this  Territory  that  provided  that 
we  should  hold  our  election  at  a  given  time,  and  when  they  eume 
in  and  said  that  this  Convention  might  provide  for  the  election 
of  State  officers,  they  enacted  that  statute  with  the  view  that  \\e 
might  bridge  over  this  period  between  the  time  we  should  adopt  t  his 
Constitution  and  the  time  we  should  hold  the  election  in  the  State 
of  South  Dakota.  If  any  gentleman  on  this  floor  can  point  me  to 
a  statute  under  which  we  could  have  elected  State  officers  this  fall. 
I  would  like  to  have  him  do  it.  Our  power  to  elect  officers  < 
by  virtue  of  the  terms  of  that  Omnibus  Bill.  They  did  not,  of 
course,  say  atwhat  particular  time  their  term  shall  expire,  but  thev 
knew  we  had  a  statute  in  this  Territory  l.y  \\hu  1; 


486  SOUTH  DAKOTA  DEBATES,  1889 

we  held  general  elections,  and  that  said  that  these  officers  were 
going  to  hold  over  until  such  a  time  as  the  people  of  this  new  State 
of  South  Dakota  should  hold  an  election  and  elect  the  new  State 
officers ;  and  therefore  they  stepped  in  here  and  provided  what  other- 
wise would  have  been  a  perfect  blank,  and  we  should  have  had  the 
means  to  elect  them  at  all.  Suppose  we  should  not  have  been 
admitted  until  some  time  after  the  first  of  January,  if  you  please. 
These  gentlemen,  according  to  the  argument  that  has  been  offered 
here,  would  have  been  elected  and  held  two  years,  and  they  would 
have  been  away  over  somewhere — depending  upon  the  circum- 
stance of  the  period  when  we  might  be  admitted  by  proclamation 
of  the  President  or  act  of  Congress  and  recognized  as  a  State. 
Now  it  seems  to  me  that  the  gentlemen  who  drew  that  Bill  were 
men  who  understood  the  history  and  something  of  the  situation - 
here.  They  step  in  here  and  say:  "In  order  that  they  may 
reach  that  time  when  they  hold  their  State  elections,  this  Con- 
vention may  provide  for  the  election  of  officers  until  such  time  as 
the  officers  elected  under  the  Constitution  can  qualify". 

It  is  a  good  deal  for  the  gentlemen  to  speculate  upon  what  the 
Constitutional  Convention  of  1885  meant.  They  said,  however, 
that  the  elections  in  this  State,  when  it  became  one,  should  be 
biennial,  and  that  all  elections  should  be  general,  and  they  used 
those  terms  understandingly.  They  said  that  those  elections 
should  be  biennial.  I  would  give  a  good  deal  more  for,  and  I  have 
a  great  deal  more  confidence  in  undertaking  to  get  at  what  they 
meant,  by  what  they  said,  than  to  rely  upon  the  speculations  of 
what  others  here  think  they  might  have  meant. 

Mr.  Dickinson,  of  Day:  Isn't  it  fair  to  get  at  what  they  meant, 
by  what  they  did? 

Mr.  Van  Buskirk,  of  Codington:  Well,  so  far  as  that  question 
is  concerned,  I  remember  some  years  ago  that  a  gentleman  was 
arguing  a  question  before  the  Court  of  Appeals  as  to  what  they 
meant  in  the  Legislature  in  New  York,  and  the  Court  said:  "I 
don't  know  anything  about  what  you  meant,  but  I  do  know  what 
you  said;"  and  that  is  the  condition  of  things  that  we  are  in  here. 
I  say  we  could  not  have  any  provision  for  the  election  of  State  of- 
ficers except  for  the  terms  of  this  Omnibus  Bill.  Unquestionably 
they  intended  we  should  fix  the  terms  of  their  offices  so  they  should 
expire  exactly  at  such  a  time  as  under  the  laws  of  this  Territory 
we  are  authorized  to  hold  a  general  election,. and  as  provided  by 


STATING  THK  Qn-sTiox  487 

statute.  It  seems  to  me  that  was  the  reasonable  internment 
of  that  body.  That  is  the  reason  I  have  stood  upon  this  question 
as  I  have.  We  have  got  no  time  provided  for  the  election  of 
officers  except  by  that  bill,  and  it  seems  to  me  it  is  fair  to  presume 
that  Congress  meant  we  should  bridge  this  time  over  until  such 
time  as  our  State  officers  could  be  regularly  elected. 

(Cries  of  "Question,  question,  question.") 

The  President  of  the  Convention:  The  gentleman  from  Beadle 
moves  the  adoption  of  Sections  19  and  20  of  the  Schedu'. 
Ordinance,  and  the  gentleman  from  Bon  Homme  moves  an  amend- 
ment. As  many  as  are  of  the  opinion  that  the  amendment  be 
adopted,  say  aye  as  your  name  is  called;  those  that  are  opposed, 
say  no. 

Mr.  Sherwood,  of  Clark:  I  ask  that  the  particular  amendment 
be  restated.  Part  of  it  has  been  withdrawn. 

The  President  of  the  Convention:  You  will  find  it  on  page  3 
of  the  proceedings  of  the  Twenty-ninth  day,  except  that  "1894" 
is  stricken  out. 

.Mr.  Williams,  of  Bon  Homme:  The  amendment  is  that  where 
the  dates  "1892"  occur  in  that  section,  they  be  stricken  out  and  the 
date  "1891"  be  inserted — not  affecting  the  term  of  office  of  the 
judges,  as  provided  in  the  report. 

The  President  of  the  Convention:     If  this  is  not  the 
amendment,  you  had  better  send  it  up  to  the  Clerk. 

Mr.  Willis,  of  Aurora:  Mr.  President ;  it  was  understood  verb- 
ally that  the  other  part  of  the  amendment  was  withdrawn,  and  I 
think  the  gentleman  has  proceeded  with  that  understanding, 
although  perhaps  the  written  amendment  was  not  sent  to  the 
Clerk. 

The    President    of   the    Convention:     "Understandings"    will 
not  appear  in  the  Journal.     If  it  is  different  from  this.  y..u  had 
better  send  it  up  in  writing,  Mr.  Williams.     The  m-i.nl  hnv  >h..\vs. 
as  I  have  stated,  on  page  3.     Now,  the  Clerk  has  this:     Mr.  Wi 
withdraws  so  much  of  his  motion  as  refers  t<>  ls(M".     That 
way  the  record  stands.     Consequently  it  stands  just  . 
before— to  amend    Section    19  by   striking  out   the   da 
where  it  occurs  in  said  section  and  inserting  in  lieu  thereof  tb 
"1891". 

Mr.  Jolley,  of  Clay:  If  the  amendment  stands  l.y  striking 
out  the  word  "1892"  and  inserting  in  lieu  thereof  the  word  "  ! 


488  SOUTH  DAKOTA  DEBATES,  1889 

why,  putting  the  whole  amendment  in  and  then  following  it  by 
that  entry  on  the  part  of  the  Clerk  of  that  part  of  it  which  is  with- 
withdrawn,  it  will  make  a  very  damaging  and  bungling  record. 

(Cries  of  "Question,  question,  question".) 

The  President  of  the  Convention:  The  amendment  that  is 
before  the  Convention  is  as  I  have  stated  it.  The  first  amendment 
was  in  yesterday's  proceedings,  as  printed;  the  offer  to  withdraw  is 
in  today's  proceedings.  It  stands  disconnectedly. 

As  many  as  are  of  the  opinion  that  the  amendment  be  adopted 
say  aye  as  their  names  are  called;  all  those  of  a  contrary  opinion, 
no. 

The  roll  was  called  (Page  148,  bound  Journal) 

Mr.  Neill,  of  Grant:  Mr.  President,  I  wish  to  explain  my 
vote.  On  the  last  roll-call  on  this  question  I  voted  no,  being 
somewhat  unacquainted  with  the  phase  of  the  argument  at  that 
time  and  supposing  that  the  whole  question  rested  upon  the  pro- 
vision of  the  Constitution  of  1885,  but  on  further  study  it  comes  to 
my  mind  that  this  election  is  governed  entirely  by  the  Omnibus 
Bill,  and  consequently  I  vote  on  this  question,  aye. 

The  President  of  the  Convention:  There  are  40  ayes  and  32 
noes.  So  the  amendment  is  adopted,  and  the  question  now  recurs 
upon  the  adoption  of  Section  19,  as  amended. 

Those  of  the  opinion  that  Section  19  be  adopted,  say  aye; 
those  of  the  contrary  opinion  say  no.  The  ayes  have  it. 

Mr.  Wood,  of  Pennington:  Mr.  President;  I  move  you  that 
the  action  of  the  Convention  in  adopting  Section  19  be  reconsidered, 
and  I  move  to  lay  that  motion  on  the  table. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  action  of  the  Convention  in  adopting  Section  19  be  reconsidered 
and  that  the  motion  to  reconsider  be  laid  upon  the  table.  Is  the 
Convention  ready  for  the  question  ?  As  many  as  are  of  the  opinion 
that  the  motion  prevail,  say  aye;  those  opposed,  no.  The  ayes 
have  it  and  the  motion  prevails. 

Mr.  Kellam,  of  Brule:  Mr.  President;  I  think  I  was  mis- 
understood last  evening  in  presenting  the  agreement  which  formed 
a  part  of  the  report  which  the  Committee  composing  the  Joint  Com- 
mission from  South  Dakota  offered,  and  I  only  did  that  at  that 
time,  as  I  thought  it  then  fully  explained,  to  forestall  the  news- 
papers in  the  printing  of  the  report.  I  thought  it  would  be  im- 


AGREEMENT  WITH  NORTH  DAKOTA  489 

proper  to  have  it  appear  in  the  papers  before  it  was  formally  pre- 
sented  to   the    Convention. 

The  Committee  named  by  this  Convention  to  form  a  part  of 
the  Joint  Commission  as  provided  by  the  Act  of  Congress  under 
which  this  Convention  is  assembled  ask  leave  to  submit  the  follow- 
ing report: 

First ;  the  agreement  that  was  presented  last  evening.  That 
agreement  is  attached  to  this  report  and  marked  "A". 

Second ;  the  recommendation  of  said  Committee  of  an  Article 
to  be  incorporated  into  the  Constitution  to  be  submitted,  respecting 
Territorial  debts  and  liabilities,  as  provided  in  said  Act  of  Congress, 
hereto  attached,  marked  "B". 

Your  Committee  also  recommend  the  adoption  as  an  Article 
of  the  Schedule  of  the  Constitution,  the  Agreement  of  said  Joint 
Commission  concerning  the  records,  books  and  archives  of  the 
Territory,  the  same  to  be  preceded  by  the  following  words,  to-wit : 

"The  agreement  made  by  the  Joint  Commission  of  the  Con- 
stitutional Conventions  of  North  and  South  Dakota  concerning  the 
records,  books  and  archives  of  the  Territory  of  Dakota,  is  hereby 
ratified  and  confirmed,  which  is  in  the  words  and  figures  following, 
that  is  to  say;" 

Then  follows  the  agreement,  which  is  a  part  of  the  agreement 
reported.  I  ought  perhaps  to  say  in  explanation  of  this  report 
that  the  duty  devolved  upon  this  Commission,  as  the  Commission 
interpreted  it,  was  to  deal  with  three  different  and  independent 
items;  first,  the  debts  and  liabilities  of  the  Territory;  second,  the 
property  of  the  Territory ;  third,  the  records  and  books  of  the  Ter- 
ritory. As  I  stated  to  the  Convention  last  night,  upon  the  as- 
sembling of  the  Commission  there  soon  developed  a  very  radical 
difference  in  the  views  of  the  members  of  both  Commissions  as  to 
the  authortiy  of  the  'Commission  in  the  disposition  of  the  books 
and  records.  If  the  gentlemen  will  look  at  Sections  5  and  6  of 
the  Omnibus  Bill,  they  will  see  an  apparent  want  of  harmony  be- 
tween the  two  sections.  One  view  was  {hat  the  words  "by  the 
State"  in  Section  5  were  used  deliberated  and  with  the  evident 
meaning  that  the  records  should  remain  at  Bismarck  until  after  the 
organization  of  the  different  States  and  through  their  legislatures 
an  arrangement  was  made  for  them.  The  other  view  was  that  this 


490  SOUTH  DAKOTA  DEBATES,  1889 

disposition  of  the  records  was  a  part  of  the  duty  imposed  upon 
this  Commission,  as  recited  in  the  next  section  of  the  Enabling  Act, 
which  says  that  this  Commission  shall  also  make  disposition  of 
the  records  and  books  of  the  Territory ;  and  under  these  circum- 
stances it  was  determined  by  a  resolution  adopted  by  the  Com- 
mission early  in  their  deliberations,  that  whatever  agreement  we 
did  reach  concerning  the  disposition  of  the  books  and  records  of 
the  Territory,  in  order  to  bring  it  within  the  apparent  terms  of 
Sect 'on  5,  should  be  reported  to  the  Convention  of  each  State,  with 
a  recommendation  that  that  agreement  be  incorporated  into  the 
Schedule  of  the  Constitutional  Convention,  and  thus  submitted, 
if  ratified,  it  became  the  agreement  of  the  States  respectively. 

I  think  that  is  all,  Mr.  President,  that-  I  have  to  say  on  the 
report.  While  we  understood  perfectly  well  that  it  was  no  part 
of  the  legitimate  duty  of  this  Commission  to  frame  an  article  to 
be  incorporated  into  the  Constitution,  as  provided  by  the  Enabling 
Act  in  reference  to  the  debts  and  liabilities  of  the  Territory,  still, 
that  act  absolutely  requiring  the  agreement  reached  to  be  incor- 
porated into  the  Constitution,  we  agreed  between  ourselves  that 
we  would  frame  such  an  article  and  that  it  should  be  signed  by  all 
the  members  of  the  Commission  and  should  be  reported  to  each 
Convention,  so  that  the  article  adopted  by  the  North  Dakota 
Convention  and  the  article  adopted  by  this  Convention  should  be 
the  same.  It  was  thought  better  that  they  should  be  uniform; 
and  so  this  Committee  has  gratuitously  recommended  an  article, 
setting  forth  substantially  this  agreement,  as  an  article  which  ans- 
swers  to  the  requirements  of  the  Enabling  Act.  I  might  say  fur- 
ther, as  there  may  be  no  other  opportunity,  that  under  this  agree- 
ment the  Territorial  library  becomes,  upon  the  taking  effect  of 
the  agreement,  the  property  of  South  Dakota.  After  the  agree- 
ment was  reached  we  caused  a  very  accurate  catalogue  of  all  the 
books  to  be  made,  and  this  Committee  has  that  catalogue,  and, 
while  it  is  no  part  of  the  duty  imposed  upon  us,  it  perpaps  ought 
to  be  returned  to  this  Convention  and  taken  care  of  until  the 
books  are  taken  possession  of.  I  think  there  are  about  eight 
thousand  volumes  in  the  library. 

In  behalf  of  the  Commission  I  will  add  that  if  in  the  examina- 
tion of  this  agreement  there  should  be  anything  that  appears  un- 
intelligible, or  anything  in  the  agreement  that  gentlemen  are  dis- 


ADOPTION  OF  THE  REPORT  491 

posed  to  criticise,  \ve  would  like  to  have  an  opportunity  of  explain- 
ing the  circumstances  undier  which  that  particular  item  wa 
posed  of. 

The  President  of  the  Convention:  Do  I  understand  you  to 
move  the  adoption  of  this  as  a  separate  article  of  the  Constitution? 

Mr.  Kellam,  of  Brule:  I  move  the  adoption  of  that  part  of  the 
report  which  is  marked  "B"  and  referred  to  in  the  formal  report, 
as  a  part  of  the  Constitution,  to  be  referred  to  the  Committee  on 
State  Indebtedness,  so  that  they  may  put  it  into  its  proper  order 
in  the  article  of  the  Constitution  which  they  have  the  management 
of. 

The  President  of  the  Convention:  It  is  moved  by  the  gentle- 
man from  Brule,  that  this  be  referred  to  the  Committee  on  Municipal 
and  State  Indebtedness.  Is  the  Convention  ready  for  the  question? 
As  many  as  are  of  the  opinion  that  the  motion  prevail,  will  say  aye ; 
those  opposed,  no.  The  ayes  have  it  and  the  resolution  is  adopted. 

Mr.  Kellam,  of  Brule:  I  move  that  the  second  part  of  the  re- 
port, which  covers  the  agreement  with  reference  to  the  books  and 
records,  be  referred  to  the  Schedule  Committee. 

The  President  of  the  Convention:  It  is  moved  by  the  gentle- 
man from  Brule  that  the  second  part  of  this  report,  that  with  ref- 
erence to  the  books  and  records,  be  referred  to  the  Committee  on 
Schedule.  Is  the  Convention  ready  for  the  question?  All  those  of 
opinion  that  the  motion  prevail,  say  aye;  opposed,  no.  Tin 
have  it  and  it  is  so  referred. 

Mr.  Price,  of  Hyde:     Mr.  President,  I  move  we  adjourn. 

Mr.  Jolley,  of  Clay:  Mr.  President,  I  move  wo  adjourn  until 
nine  o'clock  tomorrow  morning. 

A  Delegate:     I  second  the  motion. 

Mr.  Brott,  of  Brown:     Mr.  President,  I  have  received  a  call 
from  home  that  requires  my  presence  there  tomorrow,  and  as  our 
duties  are  nearly  over,  I  would  ask  to  be  oxruso-1  from  furtl, 
tendance  here,  and  I  would  ask  that  Mr.  Stoddard  be  allov. 
sign  my  n.ame  to  the  Constitution. 

The  President  of  the  Convention:     Tho  ijont Ionian  from  : 
asks  that  he  be  excused  froTn  further  attondamo  upon  the  Con- 
vention and  that  Mr.  Stoddanl  bo  allowod  to  sii:n  his  naiiu-  to  the 


492  SOUTH  DAKOTA  DEBATES,   1889 

Constitution.     If  there  is  no  objection,  it  is  so  ordered.     There 
being  no  objection,  it  is  so  ordered. 

It  has  been  moved  that  the  Convention  now  adjourn  until 
nine  o'clock  tomorrow  morning.  As  many  as  are  of  the  opinion 
that  the  motion  prevail,  say' aye ;  those  opposed  no.  The  ayes  have 
it  and  the  Convention  stands  adjourned. 


THIRTY-FIRST  DAY. 

August  3d,  1889. 

Convention  called  to  order  at  nine  o'clock  A.  M.,  by  the 
President. 

Prayer  was  offered  by  the  Chaplain. 

The  President  of  the  Convention.:  Reading  of  the  Journal 
of  yesterday. 

The  Clerk  proceeded  to  read  the  Journal. 

Mr.  Sterling,  of  Spink:  Mr.  President,  I  move  that  the  further 
reading  of  the  Journal  be  dispensed  with. 

The  President  of  the  Convention:  If  there  is  no  objection, 
it  will  be  so  ordered. 

Mr.  Hole,  of  Beadle:  Mr.  President,  we  wish  to  report  back 
the  part  of  the  report  made  by  the  Commission  sent  to  North 
Dakota  which  was  referred  to  us  on  yesterday,  and  in  reporting 
this  back  I  would  move  the  suspension  of  the  rule  that  requires  it 
to  be  laid  over  for  one  day,  and  move,  further,  the  adoption  of  this 
report,  Section  23  of  our  Schedule. 

The  President  of  the  Convention:  The  Secretary  will  read 
the  Section  23. 

The  Secretary  read  the  report  of  the  Schedule  Committee. 

Mr.  Hole,  of  Beadle:     Mr.  President;  as  I  understand  it.  we 
have  no  power  whatever  to  change  this  in  any  particular  wh;r 
and  I  move  that  the  rules  be  suspended  and  the  report  of  the  Com- 
mittee on  Schedule  be  adopted. 

A  Delegate:     I  second  it. 

Mr.  Humphrey,  of  Faulk:     Mr.  President,  in  view  of  tl 
that  it  is  not  within  our  power  to  reject  this  part  of  the  agreement , 
I  am  in  favor  of  the  adoption  of  the  language  of  the  Omnibus  Bill, 
and  I  would  move  you  to  amend  the  report  l.y  iiMng  the  won!  "in- 
corporating" instead  of  "adopting". 


494  SOUTH  DAKOTA  DEBATES,  1889 

The  President  of  the  Convention:  As  many  as  are  of  the  opin- 
ion that  the  rules  be  suspended,  say  aye ;  those  opposed,  no.  The 
ayes  have  it  and  the  rules  are  suspended.  The  question  now  re- 
curs upon  the  amendment  of  the  gentleman  from  Faulk. 

Mr.  Price  of  Hyde:  Mr.  President ;  I  desire  to  state,  if  I  under- 
stand the  report  which  has  just  been  read,  it  refers  to  the  books, 
records  and  archives  of  the  Territory.  I  understand  the  gentleman 
from  Faulk  to  say  that  it  is  obligatory  upon  this  Convention  to 
adopt  this;  that  it  has  no  power  to  change  it.  I  don't  know  that 
that  is  true.  The  Commission  have  recommended  that  a  certain 
article  be  adopted  and  incorporated  in  the  Constitution.  That, 
I  understand,  is  what  has  been  read.  Of  course  they  can  change  it 
if  they  want  to.  There  is  no  necessity  of  it. 

Mr.  Humphrey,  of  Faulk:  Mr.  President;  as  I  understand  it, 
property  is  assets,  and  I  can't  conceive  that  there  is  any  power  in 
the  Convention  to  go  behind  the  report  of  this  Committee.  I 
understand  that  I  am  in  favor  of  its  incorporation,  but  I  am  only 
in  favor  of  using  the  word  "incorporating"  instead  of  adopting." 

The  President  of  the  Convention:  The  question  is  upon  the 
amendment.  As  many  as  are  in  favor  of  the  adoption  of  the 
amendment,  say  aye;  those  opposed,  no.  The  Chair  is  in  doubt. 
Those  in  favor  of  the  amendment,  rise  and  stand  and  be  counted. 
Those  of  the  contrary  opinion,  rise  and  stand  and  be  counted. 
The  amendment  is  lost.  The  question  recurs  upon  the  adoption  of 
the  report  of  the  Committee.  As  many  as  are  in  favor  of  the 
adoption  of  the  report,  will  say  aye;  those  opposed,  no.  The  ayes 
have  it  and  the  report  is  adopted. 

Mr.  Hole,  of  Beadle:  Mr.  President;  I  would  move  you  that 
this  report,  as  now  submitted  and  adopted  section  by  section,  be 
adopted  as  a  whole. 

A  Delegate:     I  second  the  motion. 

Mr.  Price,  of  Hyde:  Mr.  President,  do  I  understand  that 
the  article  reported  by  the  Commission  has  been  adopted — 

The  President  of  the  Convention:  The  Chairman  of  the  Com- 
mittee on  Schedule  now  moves  that  the  report  of  the  Committee 
on  Schedule,  as  it  has  been  reported  and  adopted  section  by  section 
by  the  Convention,  now  be  adopted  as  a  whole.  Are  you  ready 
for  the  question? 

Mr.  Hole,  of  Beadle:  Mr.  President;  in  Section  7  there  was 
a  provision  adopting  the  former  Constitution,  so  far  as  election 


LIMIT  OF  INDEBTED  495 

purposes  is  concerned,  as  a  part  of  the  Schedule,  and  making  that 
the  rule.  Now,  by  the  amendment  of  last  night  it  is  made  con- 
tradictory, and  I  would  make  a  motion  to  reconsider  Section  7, 
with  the  purpose  of  striking  it  out. 

The  President  of  the  Convention:  It  is  moved  that  the  adopt- 
tion  of  Section  7  be  reconsidered. 

Mr.  Hole,  of  Beadle:  If  there  is  any  objection,  I  will  let  it 
stand  as  it  is,  and  ask  for  the  adoption  of  the  report  of  the  Committee 
on  Schedule,  as  a  whole. 

A  Delegate :     Well ,  what 's  the  use  of— 

Mr.  Hole,  of  Beadle:     I  will  withdraw  it. 

The  President  of  the  Convention:  The  question  is  upon  the 
adoption  of  the  report  of  the  Committee  on  Schedule,  as  a  whole. 
Is  the  Convention  ready  for  the  question  ?  As  many  as  are  of  the 
opinion  that  the  report  be  adopted  say  aye ;  opposed  no.  The 
motion  is  carried  and  the  report  of  the  Committee  on  Schedule  is 
carried  and  the  report  of  the  Committee  on  Schedule  is  hereby 
adopted  as  a  whole. 

Mr.  Sherwood,  of  Clark:  Mr.  President,  I  send  up  the  report 
of  the  Committee  on  State,  County  and  Municipal  Indebtedness 
and  move  that  the  report  be  adopted. 

A  Delegate:     I  second  the  motion. 

A  Voice:     Well,  I'd  like  to  hear  the  report  read. 

The  report  of  the  Committee  was  read  by  the  Clerk. 

Mr.  Williams  (of  Bon  Homme)  called  to  the  chair  by  the 
President. 

Mr.  Edgerton,  of  Davison:  I  would  like  to  ask  the  judgment 
of  the  gentleman  as  to  what  the  debt  would  amount  to  provide! 
the  Legislature  issued  bonds  to  the  amount  contemplated  by  tin's 
section. 

Mr.  Sherwood:     It  would  be  impossible  to  say  what  tl>.< 
debt  would  be.     We  have  the  figures  to  submit  at  $740,700.0(1  and 
$6,500.00  in  addition  to  that.     We  desire  to  say  further  that  tin-re 
are  two  or  three  items  that  are  very  urn  ertuin,  surh  as  runn:: 
State  from  now  on  which  can  not  be  exactly  fixed  upon. 

Mr.   Edgerton  of  Davison:     It   is  with  some  rehutuu< 
I  am  constrained  to  oppose  the  report  «>t"  the  Committee.     Mr. 
President,  I  do  not  think  at  this  time  in  the  history  of  this  eommon- 
wealth  we  are  prepared  to  give  the  Legislature  the  power  to  run 
us  in  debt  $500,000  more  than  $750.1)00  we  are  .ompelled  I 


496  SOUTH  DAKOTA  DEBATES,  1889 

sume  under  the  Omnibus  Bill  by  the  report  of  the  Committee. 
I  know  gentlemen  may  tell  me  that  it  is  only  a  power  that  will 
not  be  exercised.  I  think  the  experience  of  every  man  in  this  Con- 
vention will  bear  me  out  that  the  Legislature  in  all  human  prob- 
ability will  run  us  in  debt  to  the  limit  allowed  by  the  Constitution. 
In  other  words  that  the  State  of  South  Dakota  will  be  in  debt  the 
$750,000  that  we  are  compelled  to  assume  under  the  Omnibus  Bill 
and  also  $500,000  that  we  are  allowed  by  the  report.  I  want  to 
call  the  attention  of  the  Convention  to  certain  provisions  in  our 
Constitution  in  reference  to  the  indebtedness  referred  to.  Article 
XI,  Revenue  and  Finance,  Section  1:  "The  Legislature  shall  pro- 
vide for  an  annual  tax  sufficient  to  defray  the  estimated  ordinary 
expenses  for  each  year;  not  to  exceed  at  any  one  year  two  mills  on 
the  dollar  of  the  assessed  valuation  of  all  taxable  property  in  the 
State,  to  be  ascertained  by  the  last  assessment  made  for  State  and 
county  purposes.  And  whenever  it  shall  appear  that  such  ordmary 
expenses  shall  exceed  the  income  of  the  State  of  such  year,  the 
Legislature  shall  provide  for  levying  a  tax  for  the  ensueing  year 
sufficient  with  other  resources  of  income  to  pay  the  deficiency  of 
the  preceding  year,  together  with  the  estimated  expenses  of  such 
ensuing  year."  It  is  the  following  part  of  the  section  particularly 
I  invite  the  attention  of  the  Convention  to.  "And  for  the  purpose  of 
paying  the  public  debt  the  -legislature  shall  provide  for  levying  a 
tax  annually,  sufficient  to  pay  the  annual  interest  and  the  principal 
of  such  debt  within  ten  years  from  the  final  passage  of  the  law 
creating  the  debt,  provided  that  the  annual  tax  for  the  payment  of 
the  interest  and  principal  of  the  public  debt  shall  not  exceed  in 
any  one  year  two  mills  on  each  dollar  of  the  assessed  valuation 
of  all  taxable  property  in  the  State  as  ascertained  by  the  last  as- 
sessment made  for  State  and  county  purposes."  That  is,  in  other 
words,  we  now  propose  to  put  it  in  the  power  of  the  Legislature  to 
increase  the  debt  over  $750,000,  $500,000  which  will  make  the  total 
debt  $1,250,000.  One-tenth  of  that  amount  is  to  be  paid  annually ; 
that  is  in  addition  to  the  two  mill  tax  that  we  pay  for  the  ordinary 
expenses  of  the  government  we  must  pay  an  additional  two  mill 
tax  or  sufficient  thereof  to  meet  the  interest  and  one-tenth  of  the 
principal.  In  other  words  that  we  must  pay  $125,000  of  the  prin- 
cipal together  with  the  interest  annually.  If  any  gentleman  upon 
this  floor  can  see  the  immediate  necessity  of  granting  this  power  to- 


LIMIT  OF  INDEBTKI-  497 

the  Legislature  I  would  like  to  hear  about  it.  In  the  tint  place- 
you  may  say  it  is  nee  eisary  for  the  em  ti«m  of  a  public  buildim 
man  will  claim  that  there  is  any  necessity  fur  any  expensive 
public  buildings  for  the  next  three  years.  However,  in  all  human 
probability  the  capitol  will  not  be  permanently  located  for  the 
next  three  years.  I  shall  be  the  last  one  to  oppose  any  reasonable 
appropriation  to  build  a  suitable  and  proper  capitol  building  at 
the  seat  of  government  wherever  the  people  of  South  Dakota  may 
locate  it.  But  at  present  I  do  not  see  the  necessity  for  this  extra- 
ordinary power.  In  the  next  place  our  Constitution  is  so  easily 
amended  ineffect,  I  am  of  the  opinion  it  is  one  of  the  defects  of  that 
Constitution  that  it  may  be  so  easily  amended.  It  is  only  i 
sary  when  an  extraordinary  expense  is  to  be  rendered  to  submit 
the  proposition  to  the  people  that  the  people  may  ratify  it.  If 
this  limitation  is  placed  at  $850,000,  that  is  $100,000  over  and 
above  the  $750,000  that  we  are  compelled  to  pay  by  the  (  mnibus 
Bill  by  the  report  of  the  Committee.  If  we  need  more  than  the 
$100,000  submit  the  proposition  to  the  people  and  let  the  ; 
determine  whether  we  need  the  additional  amount  to  the  amount 
of  $100,000  or  $200,000  or  $300,000  over  and  above  that  amount. 

The  State  starts   in  with  an  extraordinary   debt    for 
State ;  starts  in  with  a  fixed  debt  that  it  is  impossible  for  us  to  i 
of  $750,000.       Now  we  are  asked  to  give  the  Legislature  the  . 
ordinary  power  that  exists  in  but  few  of  the  States,  that  of  running 
the  State  in  debt  for  another  $500,000  over  and  above  the  $750,000 . 
I  think  I  state  it  advisedly  when   I  say  this  is  an  ex- 
power      There  are  but  few  states  that  give  the  power  to  the  ' 
lature  to  do  as  recommended.     I  think  many  of  the  States  '. 
it  to  $50,000  or  $100,000  and  went  into  practically 

out  of  debt.     Now,  by  this  report  we  are  called  upon  t< 
indebtedness  of  $750,000  back  of  us  and  fix  a  debt  an  unuilating. 
Let  me  take  this  opportunity  to  say  that  the  Conimitu. 
to  North  Dakota  secured  for  us  a  report  of  settlement  that 
only  just  but  eminently  fair  and  \  while 

I  assume  that  that  is  fixed  by  the  report   of    the   Commute 
the  Omnibus  Bill,  let  us  go  cautiously  when  we  atteim  I 
upon  the  people  a  debt,  xmU-s  it  seems  absolutely   •  with- 

out first  submitting  it  to  vote  of  i  <-\vn  opinion  is 

that  $100,000  is  amply  sufficient  to  meet  all  t! 
we  may  be  called  upon  t< 


498  SOUTH  DAKOTA  DEBATES,  1889 

permanent  capital  shall  be  fixed;  unless  we  submit  the  proposition 
first  to  the  people. 

For  this  annual  revenue  you  may  count  upon  two  mills  tax 
which  is  estimated  here  to  be  about  $248,000  per  annum.  That 
may  be  disbursed  because  being  an  annual  revenue  will  require 
no  extraordinary  powers.  We  have  heard  the  statement  advanced, 
this  is  based  upon  the  history  of  the  past  largely ;  that  is  estimating 
the  assessed  valuation  of  Dakota  to  be  $100,000,000.  That  two 
mill  tax  that  is  allowed  for  the  ordinary  expenses  of  the  government 
there  would  be  a  revenue  of  $200,000.,  from  the  railroads  $33,000., 
and  from  other  sources  $15,000,  making  an  annual  revenue  of  the 
State,  as  near  as  we  can  approximate  it,  $248,000  That  is  not 
within  the  limitations  of  the  Constitution  because  that  is  the 
ordinary  annual  revenue  of  the  State  government  that  can  be  dis- 
pursed  by  the  Legislature.  The  expenditures,  so  far  as  I  have 
been  able  to  ascertain  them,  I  will  say  this  is  a  table  that  was  pre- 
pared with  some  care  by  Mr.  Ward,  a  citizen  of  this  city,  formerly 
auditor  of  this  State,  for  the  maintenance  of  State  institutions, 
$223,905.  and  for  standing  appropriations  necessary  to  run  that 
State  government,  $100,000.  He  estimates  the  expenses  of  the 
first  State  Legislature  at  $90,000;  total  expenses,  $448,905;  con- 
sequently it  will  be  seen  by  any  person  that  the  necessary  and  ab- 
solute expenses  of  the  government  for  the  next  t\vo  or  three  years 
will  be  very  large  unless  this  is  anticipated,  should  we  give  the 
Legislature  power  to  borrow  money  for  the  anunal  expenses  of  the 
government.  This  is  ah  extraordinary  power  granted  to  them 
under  the  report  of  the  Committee.  It  is  unnecessary  and  if  you 
do  that,  unless  it  changes  the  provisions  requiring  one-tenth  of 
the  principal  to  be  paid  annually,  this  certainly  is  unnecessary. 
Taking  either  view  of  it  in  my  opinion  at  this  time  it  is  uncalled 
for.  If  we  are  called  upon  at  any  time  to  meet  extraordinary  ex- 
penses, let  us  submit  the  proposition  to  the  people  and  if  they 
believe  that  such  extraordinary  expenses  are  warranted,  the  people 
of  South  Dakota  will  immediately  grant  the  power ;  if  they  believe 
it  is  unwarranted  then  of  course  there  is  no  necessity  for  having 
this  in  the  Constitution.  Therefore,  for  these  reasons,  I  am  com- 
pelled to  vote  against  the  adoption  of  the  report  of  the  Committee. 
I  do  it,  as  I  said  in  the  first  instance,  with  great  reluctance. 

Mr.  Boucher:     Do  vou  believe  that  this  Convention  has  the 


LIMIT  OP  INDEBTEDNESS  499 


right  to  raise  revenue  on  the  State  indebtedness  at  all  exc- 
far  as  it  is  held  by  the  Omnibus  Bill  ? 

Mr.  Edgerton  of  Davison:  I  think,  to  state  it  accurately, 
we  are  acting  under  the  Omnibus  Bill.  That  is  a  limitation  of 
our  powers.  The  Omnibus  Bill  provides  absolutely  that  we  must 
assume  our  proportion  of  the  Territorial  debt  and  that  pro])' 
as  adjusted  by  the  Joint  Commission.  It  says  still  further  than 
that  that  we  shall  have  the  power  to  make  all  necessary  amend- 
ments of  the  Constitution  of  1885  to  carry  out  the  express  provisions 
of  the  Omnibus  Bill  and  the  Omnibus  Bill  provides  that  we  must 
assume  8750,000  of  the  Territorial  debt.  The  Omnibus  bill  pro- 
vides that  we  shall  make  our  amendments  to  the  Constitution  of 
1885,  that  shall  be  necessary  to  give  full  force  and  effect  to  this 
obligation  on  our  part.  Consequently  my  own  opinion  is,  that 
the  power  being  granted  to  this  Convention  by  the  Omnibus  Bill 
we  have  the  right  to  so  adjust  the  Constitution  of  1885  that  we 
provide  for  the  payment  of  the  $750,000.  I  do  not  believe  that 
that  means  in  addition  to  the  original  limitation  of  $500,000.  I 
believe  in  a  fair  construction  of  the  Omnibus  Bill.  The  Constitu- 
tion provides  that  we  must  so  increase  the  limitation  as  shall  ab- 
solutely compel  the  State  to  pay  $750,000.  I  know  some  gentle- 
men upon  this  floor  believe  that  our  power  is  to  so  increase  the 
limitation  that  the  Legislature  shall  have  the  power  to  fix  th< 
as  these  gentlemen  of  the  Joint  Commission  have  reported.  My 
own  opinion  is  that  we  have  the  right  to  make  the  limitation  that 
the  Committee  have  reported.  I  do  not  believe  that  we  have  the 
right  to  exceed  the  powers  of  the  Omnibus  Bill  in  this  Constitution. 
I  believe  that  they  have  the  report  to  this  Constitution  that  we 
must  assume  $750,000  and  also  leave  the  limitation  at  $500,000 
as  they  find  it  in  the  Constitution.  I  believe  the  Committee  have 
exceeded  the  powers  of  this  Convention,  that  is  simply  a  qr. 
of  business  for  the  future  State.  Shall  we  adopt  the  report  of  the 
Committee  that  will  fix  the  liability  of  the  State  at  $750,000  under 
the  Omnibus  Bill  and  leave  the  original  amount  $500. ooo  as  in  the 
Constitution  of  1885? 

Have  we  the  further  power  of  only  increasing  the  In- 
to $750,000  and  leave  the  power  in  th«  Legislatw 
bonded  indebtedness  whatever  without  tirM  submitting  the  p 

sition    to    the    pei.plr?      A    number    of    states    ha\ 
limitation,   notably    Miehigan.   that    n<>   Legislature  ran   mai 


500  SOUTH  DAKOTA  DEBATES,  1889 

debt  without  first  submitting  the  proposition  to  the  people ;  I  think 
it  is  Michigan,  I  would  not  be  certain.  As  I  said  before,  in  my 
opinion  there  is  an  intermediate  force,  that  is  that  we  pay  this 
debt  that  we  are  compelled  to  pay  under  the  Omnibus  Bill,  of  $750- 
000,  and  also  in  addition  to  that  that  the  Legislature  shall  have  the 
power  over  and  above  the  current  revenues  of  the  State  from  year 
to  year,  to  run  us  in  debt  a  bonded  indebtedness  of  $100,000. 
In  other  words,  it  amounts  to  this  proposition:  Increase  the 
$500,000  to  $850,000.  As  I  said  before,  I  believe  that  the  Com- 
mittee have  gone  beyond  the  power  given  them  by  the  Constitution 
and  by  the  Omnibus  Bill ;  gone — 

Mr.  Williamson:  I  wish  to  offer  the  following  amendment. 
I  wish  to  amend  the  report  of  the  Committee  by  striking  out  in 
Section  2  the  figures  $500,000  and  inserting  in  lieu  thereof  $850,000, 
and  by  striking  out  the  Section  3  entirely  of  the  report  of  the  Com- 
mittee. 

Mr.  Lee:  I  believe,  Sir,  in  letting  the  majority  rule.  That 
is  one  of  the  principles  I  have  fixed,  heart  principles.  Consequently 
I  did  not  see  fit  to  bring  in  a  minority  report.  But  myself  and 
one  other  member  of  the  Committee  voted  $300,000  when  they  had 
•the  report  under  consideration.  I  believe  in  economy,  hence  I 
heartily  support  the  motion  of  my  friend  on  the  right.  $500,000 
is  too  large. 

Mr.  Sherwood:  Perhaps  it  would  be  proper  to  tell  the  reason 
why  the  Committee  came  to  the  conclusion  to  which  the  finally 
came  in  regard  to  this  matter.  Before  we  go  any  further  into  the 
details  in  this  discussion  I  desire  to  say  that  the  view  of  the  Com- 
mittee in  this  matter  was  this:  We  held  to  this  position,  that 
the  intention  uf  the  Constitutional  Convention  of  1885  was  the 
creating  of  an  indebtedness  of  $500,000  and  that  the  intention  of 
the  Convention  was  to  ask  Congress  to  enact  a  law  that  we  should 
assume  and  pay  a  certain  proportion  of  the  debt  of  the  Territory 
of  Dakota,  as  shall  be  provided.  Then  our  idea  is  that  we  are  to 
follow  but  the  law  of  Congress  by  assuming  whatever  debt  this 
Joint  Commission  settle  upon  us,  yet  we  are  not  compelled  to  amend 
the  Constitution  of  1885  by  changing  the  $500,000  to  any  greater 
or  le  s  sxim  in  order  to  conform  with  the  provisions  of  the  Omnibus 
Bill  and  assume  this  debt.  That  we  assume  the  debt  that  this 
Joint  Commission  has  found  to  be  our  proportion  of  the  debt  of 
the  Territory  of  Dakota,  then  we  stand  in  this  position  that  we  do 


LIIMT  OH  INDEBTEDNESS 


not  find  it  necessary  to  amend  the  Constitution  <,t  1SS5  at  all, 
neither  do  we  find  any  warrant  to  amend  the  Constitution  by  i  hang- 
ing the  limit  of  $500,000.  That  was  the  view  of  the  Conn:.- 
none  of  the  Committee  considered  that  we  had  any  right  to  change 
Section  2.  The  Omnibus  Bill  provided  for  incurring  that  portion  of 
the  debt  of  the  Territory  of  Dakota  provided  for  in  the  Omnibus 
Bill,  to-wit:  $750,000,  a  certain  sum,  and  having  provided  for 
all  that  we  do  not  see  it  is  abusing  the  power  to  change  the  limit  of 
$500,000  fixed  under  the  Constitution.  I  think  the  question  of 
power  will  come  in  here  properly  and  after  a  careful  examination 
of  the  subject  the  Convention  shall  decide  that  it  was  the  intention 
of  the  Constitutional  Convention  of  1885  to  fix  the  limited  indebted- 
ness at  $500,000,  then  we  are  bound  by  that  limited  indebte 
and  cannot  do  more  or  less  than  accent  the  indebtedness  fixe<l  by 
the  Joint  Commission. 

In  relation  to  the  amendment  of  the  gentleman  from  M 

Mr.  Williams:     If  the  gentleman  will  allow   me   I  will  offer 
another  amendment  in  lieu  of  the  last  one  made  by  myself.     To  in- 
insert  the  figures  $100,000  in  lieu  of  the  figures  $500,000  in  S. 
2.     That  will  be  the  only  change  which  I  wish  to  offer. 

Mr.  Wood,  of  Pennington:     I  second  the  amendment. 

The  Chairman:     The  question  before  the  Convention  is  upon 
the  adoption  of  the  report  of  the  gentleman  from  Clay ;  to  that  the 
gentleman  from  Moody  moves  an  amendment  to  insert 
100,000  instead  of  $500,000  in  Section  2. 

Mr.  Sherwood:     I  desire  to  state  one  or  two  thin- 
possibly  be  admitted  into  the  Union  before  about  the  tir>- 
ber  next.     As  I  understand  it  the  Territorial  tax  is  levied,  will  be 
levied  prior  to  that  time;  the  tax  of  the  State  of  South  Dakota  will 
have  to  rely  upon  a  levy  prior  to  the  time  \vc  become 
the  gentleman  from  Davison  is  correct.      He  estimates  the  running 
expenses  of  this  State  to  be  $448,905.,  including  the  support 
public  institutions  and  our  Legisla- 

Mr.   I'Mgerton  of  Davison:      It  includes  all  del 
on  the  bonded  indebtedness,  maintamatu  e  of  the  state  UlStituI 
the  landing  appropriation   for  the  expel 

government  ;  the  expenses  of  the  Legislature;  the  whole  will  amount 
to  $448,900. 

Mr.   Sherwood:      I  understand  also  the:< 
who  have  figured  that  the  revenue  will  arnou:  I  it  $238,000 


402  SOUTH  DAKOTA  DEBATES,  1889 

Mr.  Edgerton,  of  Davison:  In  Section  11,  the  Legislature 
has  power  to  levy  an  additional  tax  of  two  mills. 

Mr.  Sherwood:  Those  extra  two  mills  would  not  be  levied 
until  we  become  a  State  and  levy  a  tax  regularly  a's  a  State.  May 
I  ask  you  this  question?  The  two  mills/ — assuming  we  are  limited 
to  two  mills, — the  present  levy  will  be  made  in  view  of  the  law  in 
existence.  If  that  be  a  fact  there  will  be  a  deficit  of  over  $100,000. 
As  I  understand  it,  if  there  were  a  three  mill  tax  levied  there  would 
be  still  a  deficit  in  the  running  expenses  of  the  State  of  over  $100,000. 

Mr.  Edgerton,  of  Davison:  The  limitation  in  Article  XI  for 
our  expenses  of  State  government  an  additional  two  mills  may  be 
levied  for  payment  of  interest  upon  the  indebtedness,  which  would 
really  make  four  mills. 

Mr.  Sherwood:.  I  am  now  speaking  of  our  revenue  received 
as  a  Territory  and  speaking  regarding  this  revenue,  and  I  say, 
that  a  three  mill  tax  levied  on  the  estimate  of  the  gentleman  from 
Davison  that  there  would  still  be  a  deficit.  I  desire  the  Convention 
to  think  of  this  matter  carefully ;  I  desire  to  say  also,  I  am  very 
much  opposed  to  making  this  $500,000  myself.  I  would  have  pre- 
ferred to  make  it  $100,000  of  $150,000  after  carefully  examining 
the  amount  of  expenses  that  might  accrue  to  the  new  State;  we 
must  have  some  credit  and  some  latitude  to  borrow  money.  I 
deem  this  provision  of  this  Constitution  a  wise  one.  I  desire  to  say 
that  while  there  are  many  States  who  have  a  limit  from  $50,000 
to  $300,000,  there  are  other  states  which  have  a  limit  of  $500,000 
or  more;  I  think  Kansas  has  a  limit  of  $1,000,000. 

Mr.  Edgerton,  of  Davison:     What  limit  has  Iowa? 

Mr.  Sherwood:  I  think  it  is  $100,000.  I  may  be  mistaken, 
I  think  it  is  $100,000;  Minnesota,  I  think,  has  $250,000. 

Mr.  Van  Buskirk:  I  desire  to  offer  an  amendment  like  this: 
That  the  public  debt  of  this  State,  to  be  hereafter  incurred  shall 
never  exceed  the  sum  of  $500,000.  and  until  the  present  debt  of 
South  Dakota,  assumed  upon  the  division  between  North  and 
South  Dakota  shall  have  been  paid,  South  Dakota  shall  not  incur 
further  indebtedness  exceeding  the  sum  of  $200,000. 

Which  amendment  received  a  second. 

The  Chairman:  The  motion  before  the  Convention  is,  the 
adoption  of  the  report  of  the  Committee  on  State,  Municipal,  and 
County  Indebtedness.  The  gentleman  from  Moody  county  offers 


LIMIT  OF  INDEBTED  503 

an  amendment  and  the     gentleman  from  ('ruling on  ('•  .\rnty  offers 
an  amendment  to  the  amendment. 

Mr.  Jolley:  I  rise  to  a  point  of  order;  an  amendment  to  an 
amendment,  I  do  not  understand  what  that  means ;  the  amendment 
is  to  strike  out  and  insert.  Now,  if  the  amendment  is  to  strike 
out  $500,000  and  insert  $100,000  this  other  amendment  is  not 
taken  in  the  place  of  anything,  does  not  add  to  anything, 
vague. 

Mr.   Van   Buskirk:      I  will   move  this  as  a  substitute  for  the 
amendment  of  the  gentleman  from  Moody  Bounty. 

Mr.  Cal dwell:  Of  course  it  is  evident  that  the  limitation 
regarding  this  State  indebtedness  must  be  either  one  of  two  things ; 
it  must  mean  that  the  $500,000  limitation  is  to  include  tin 
ritorial  indebtedness  assumed  or  it  must  mean  that  it  is  independent 
of  that  debt.  It  seems  to  me  that  if  it  is  to  be  regarded  as  including 
that  part  of  the  Territorial  indebtedness  which  is  to  be  assumed 
that  it  is  competent  for  this  Convention,  under  the  limitations 
which  have  been  placed  upon  it  to  increase  it  to  no  further  sum 
than  simply  enough  to  cover  precisely  the  total  amount  of  the  in- 
debtedness assumed.  That  is  to  say  that  if  this  limitation  upon 
the  State  indebtedness  is  to  include  the  Territorial  debt  that  we 
have  the  power  under  the  Omnibus  Bill  and  the  requirement  which 
is  upon  us  to  make  our  Constitution  conform  to  this  limitation 
that  we  simply  have  the  power  to  increase  that  sum  to  $500,000.00, 
which  is  just  enough,  and  precisely  enough,  to  cover  the  debt  which 
we  assume.  On  the  other  hand  if  the  interpret  at  ion  is  to  1" 
the  Territorial  debt  assumed  is  independent  of  and  outside  of  this 
limitation  upon  the  debt  which  the  State  may  imur.  then  we  have 
not  a  particle  of  power  to  change  that  one  niekle  because  this 
fact  being  independent  it  is  not  affected  a  particle  by  any  of  the 
requirement  or  limitations  of  the  Omnibus  Hill.  It  is  my  judgment 
that  this  limitation  upon  the  power  of  simply  the  State  iinl« 
ness  is  totally  independent  of  the  requirement  requiring  t; 
sumption  of  the  Territorial  debt.  I  am  lead  to  this  com  lusion 
by  the  exi:-ten<  e  of  Section  5  of  Article  X11I. 

Mr.  Jollev:      Thai  IS  Btri<  ken  Out. 

Mr.  Caldwell:      1  am  speaking  now. 

der  the  Omnibus  Hill  as  mcrclv  to  chl  :1  "»   1SS 

In   the   Constitution   of    lss5   appears   tins   Section  Article 

XIII  which  sa\  '   i*  given  that   ' 


504  SOUTH  DAKOTA  DEBATES,  1889 

provision  or  the  payment  by  this  State  of  the  existing  indebtedness 
of  the  Territory  of  Dakota  as  it  shall  deem  just  and  equitable  and 
this  State  shall  assume  and  pay  so  much  thereof  as  this  Congress 
may  provide."  Now  Congress  has  provided  by  this  Omnibus  Bill 
a  method  by  which  a  j.;st  division  to  South  Dakota  of  the  Terri- 
torial debt  shall  be  adju.  ted ;  how  shall  it  be  assumed ;  and  the  steps 
in  execution  of  this  requirement  of  the  Omnibus  Bill  have  been 
taken.  But  it  is  determined  that  the  amount  thereof  is  very  much 
higher  than  the  limitation  upon  the  State ;  the  very  fact  of  the  li- 
ability, that  the  debt  would  thus  be  larger  seems  to  me  to  raise 
the  fair  presumption  that  the  amount  of  the  Territorial  debt  was 
to  be  regarded  as  totally  outside  of  the  limitation  upon  the  State 
debt.  Now  as  I  say,  and  the  reason  why  I  think  that  this  inter- 
p'retation,  independent  of  these  two  propositions  may  be  fairly 
maintained,  is  this;  that  such  construction  must  be  put  upon  the 
statutes  and  npon  the  Constitution  as  will  give  effect  to  the  limita- 
tions contained  therein.  If  such  construction  be  now  put  upon 
this  provision  of  the  Constitution  of  1885  as  shall  require  that 
the  $550,000  is  to  include  the  Territorial  indebtedness,  of 
course  the  whole  thing  falls  to  the  ground,  and  the  Con- 
stitution by  its  own  provision  conflicts  with  itself.  So  taht, 
as  I  say,  we  must  give  sucji  interpretation,  if  itbe  possible 
as  shall  not  result  in  a  conflict  between  the  different  parts 
of  the  same  document.  Therefore  the  only  interpretation 
which  can  be  put  upon  this  article  in  order  to  avoid  this  future 
conflict  is  to  require  the  two  limitations  to  the  two  requirements 
as  totally  independent  of  each  other;  for  if  it  be  agreed,  or  if  it 
may  be  fairly  implied  that  these  two  propositions  are  independent 
of  each  other,  it  must  necessarily  follow  that  there  is  nothing 
whatever  in  the  Omnibus  Bill  that  has  any  reference  whatever  to 
this  limitation  of  $500,000;  the  only  thing  that  there  is  in  the 
Omnibus  Bill  in  the  nature  of  a  requirement  is  concerning  the  as- 
sumption by  this  state  of  its  portion  of  the  Territorial  debt.  There 
is  not  in  the  Omnibus  Bill  a  single  line  or  a  single  word  referring 
to  the  amount  of  independent  debt  which  the  State  itself  may 
create.  Therefore,  if  it  is  true  that  this  limitation  of  $500,000  is 
independent  uf  the  requirement  concerning  the  assumption  of  the 
Territorial  debt  it  is  absolutely  beyond  the  power  of  this  Conven- 
tion to  change  that  sum  of  $500,000  one  iota,  however  desirable 
it  might  be  that  there  should  be  a  lef  s  sum  fixed  than  has  already 


LIMIT  OF  INDEBTED*  SOS 

been  fixed.     The  limitation  upon  this  Convention  is.  that  it  shall 
make  such  changes  in  the  Constitution  of  1885  and  only  such  changes 
as  are  to  be  inferred  from  the  requirements  of  tin-  Onmibu 
Therefore,  I  shall  certainly  be  opposed  to  either  of  these  amend: 
It  seems  to  me  the  only  possible  thing  that  can  be  done  with 
ence  to  the  Constitution  of  1885  with  regard  to  the  amount  of  : 
indebtedness  is  simply  to  make  it  beyond  peradventure  that 
two  propositions  are  independent.     It  seems  to  me  the  only  thing 
that  this  Convention  can  do  is  to  put  in  here  somewhere  a  pr» 
that  the  limitation  to  $500,000  is  not  to  be  regarded  as  including 
the  sum  which  the  State  imut  assume  in  furtherame 
quirements  of  the  Omnibus  Bill  in  taking  its  share  of  the  Territorial 
indebtedness. 

Mr.  Jolley:     Why  not  put  an  independent  section  in? 

Mr.   Caldwell:     It  absolutely,  in  my  judgment,   forbids   this 
Convention  from  changing  a  single  figure  of  that  $500,000. 

Mr.    Boucher,   of   McPherson:     Mr.    President;  upon    r 
Section  2  of  Article  XIII  of  the  Constitution  of  1SS5,  1  think  it 
is   perfectly  clear  that  that   $500,000.00  indebtedness  is  entirely 
separate  and  distinct  from  the  indebtedness  which  the  S 
inherit  from  the  Territory.     That  section  is  this: 

"For  the  purpose  of  defraying  extraordinary   c\ 
making  public  improvements,  or  to  meet  casual  deficits  or  failure 
in  revenue,  the  State  may  contract  debts  never  to  exceed  with 
previous  debts  in  the  aggregate  $500,000."  so  I  don't  ].. 
is  any  question  but  what  those  are  separate  and  distinct. 
not  a  state  debt.     They  assume  the  payment   of  tin- 
debt.     Now,  I  am  anxious  and  willing  and  will  1>< 
the  amendment.      I  rather  like  the  amen.ln..  :.-il  by  the 

gentleman  from  Codingtmi  COtanty,  it"  I  can  :  i  that 

we  have  got  the  right  tod.,  it.  tion  in  my  min«i 

we  have  any  right   to  change  or  limit   the  State-  indobti-'lnr 
the  purposes  BpC4  itird  in  Sect!  XIII.  from  $500.000. 

Mr    Williams. in.  of  Mo,>,h  :      Mr.   I1 
this  question  of  previous  indi-bn-din-  s  whu  ! 
by  the-  last  gentleman  upon  this  SOOT,  it  ' 
(UK- tion  was  discussed  here,  f 

tion  to  do  anything  more  than   to  limit   of  S 

such  sum  as  would  bear  its  pp.port.on  .  .f  tin 
ne?s.  but  as  a  number  of  tin 


506  SOUTH  DAKOTA  DEBATES,  1889 

Convention,  seem  to  be  of  the  opinion  that  this  Convention  has 
power  under  the  Omnibus  Bill  to  change  that — to  assume  that 
indebtedness  and  change  the  $500,000,  either  by  omitting  it  al- 
together, or  by  leaving  it  stand  altogether,  or  by  mulitplying  it, 

1  accede  to  their  opinion  on  that  point.     It  then,  as  it  seems  to 
me,  becomes  simply  a  question  or  policy  for  this  Convention  to 
determine  what  changes  they  shall  make  in  this  matter.     Now, 
this  Convention  is  obliged  to  amend  Article  XIII  to  provide  for 
this  Territorial  indebtedness  which  we  have  inherited,  because  the 
report  of  the  Committee  clearly  changes  and  amends  the  meaning 
of  Article  XIII,  because  they  have  inserted  Section  3,  which  states 
specifically  that  the  indebtedness  we  assume  from  the  Territory 
of  Dakota  shall  not  be  included  in  the  indebtedness  referred  to  in 
Section  2.     It  certainly  appears  that  their  report  provides  for  the 
material  amendment  of  Article  XIII,  and  that  such  an  amendment, 
or  some  amendment  of  Article  XIII  is  required,  in  order  to  bri"  g 
us  within  the  requirements  of  the  Omnibus  Bill  and  the  Constitution. 

With  reference  to  this  Section  5  of  the  Constitution  as  origin- 
ally adopted,  it  has  been  dropped  by  the  report  at  this  time  because 
it  is  wholly  superfluous  at  this  time.  It  was  adopted  at  that  time 
as  a  temporary  expedient.  No  machinery  had  been  provided  at 
that  time  for  determining  what  our  share  of  the  Territorial  indebted- 
ness would  be.  This  Section  5  is  very  much  like  the  Schedule  and 
Ordinance  in  its  effect.  It  was  a  temporary  bridge,  or  expedient,  to 
go  over  with  at  that  time. 

So  far  as  saying  we  must  now  construe  Section  5  and  Section 

2  together,  it  seems  to  me  that  is  a  little  absurd.     As  I  am  informed 
and  believe,  the  amount  of  Territorial  indebtedness  which  would 
have  been  South  Dakota's  share  at  that  time,  was  about  four  hun- 
dred thousand  dollars;  that  is,  that  South  Dakota  would  at  that 
time  have  been  obliged  to  incur  an  indebtedness  of  four  hundred 
thousand  dollars,  and  it  appears  to  me  plain,  from  that  fact,  that 
it  was  the  intention  of  the  framers  of  that  Constitution  to  leave  lee- 
way of  about  one  hundred  thousand  dollars,  under  this  Section, 
for  the  State  to  go  on  and  meet  extraordinary  expenses  that  might 
turn  up,  and  it  seems  to  me  we  ought  to  take  that  as  a  guide  at 
this  time.     I  would  like  to  call  attention  to  the  wording  of  Section 
2.     It  says: 

"For  the  purpose  of  defraying  extraordinary  expenses  and  mak- 
ing public  improvements,  or  to  meet  casual  deficits  or  failure  in 


LIMIT  OF INDEBTEDN  507 


revenue,  the  State  may  contract  debts  m-ver  to  exceed,  with  pre- 
vious debts,  in  the  aggregate,  $500,000". 

Suppose  we  leave  out  these  words  "with  previous  del.ts",  then 
it  would  have  read,  "the  State  may  contract  debts,  never  to  exceed 
$500,000".  We  have  therefore  a  most  complete  cut-off  of  all  the 
indebtedness  by  the  State.  It  appears  to  me  plain  that  it  was  the 
intention  of  the  Constitution  when  this  Section  was  drawn,  that 
that  was  to  cover  the  indebtedness  inherited  from  the  Territory 
as  well  as  that  incurred  by  the  State.  Otherwise  that  Convention 
was  guilty  of  tautology  when  they  put  in  these  words  that  amount 
to  nothing,  "with  previous  debts". 

Now,  inasmuch  as  this  has  become  a  question  of  policy,  I  think 
this  Convention  may  well  consider  what  the  people  of  South  Dakota, 
when  they  voted  upon  the  adoption  of  this  Constitution,  believed 
that  meant.     I  am  not  afraid  to  say  that  I  am  anxious  in  my  action 
here  to  conform,  so  far  as  these  Constitutional  provisions  and  the 
Enabling  Act  will  permit,  and  to  so  act  and  vote  as  I  belie\ . 
majority  of  my  constitutnts  would  wish  to  have  me  vote  an- 
and  I  know  that  my  own  county— Moody  county,  which  had  the 
honor  of  casting  the  largest  vote,  proportionately,  in  the  Territory, 
for  the  Constitution— 1059  votes  for  and  two  votes  against  this 
Constitution  last  fall — I  say  that   I  know  that  my  constituents 
of  Moody  county  did  that  more  for  the  purpose  of  cutting  off  the 
chance  of  further  indebtedness  than  for  any  other  reason.     It  was 
because  they  viewed  with  dismay  the  mountain  of  indebtt 
the  Territory  has  been  piling  up,  and  it  was  because  they  wis' 
interpose  a  barrier  between  the  people  and  further  indebtt 
that  they  voted  for  the  adoption  of  this  Constitution.     Tin-  : 
of  my  county  do  not  believe  that  public  prosperity  is  pn>nx.- 
incurring  public  debts,  or  that  the  way  to  gain   prosperity  is  to 
go  in  debt  beyond  your  income  and  beyond  your  ability  t 
The  board  of  Commissioners  at   the*  last  session  paid  off  tl 
outstanding  bond  of  Moody  county.      For  over  ten  years  tin 
never  been  a  warrant  in  that  county  which  lias  not  been  pai'i 
ntation,      They    have    no    debts.      They    have    a    COUJll 
and  a  court  house.      Hut  the  people  of  that  i  ounty 
of  the  Territorial  indebtedness,  tin-  sum  <>usand  d 

and  the  people  of  that  county  don't  want  the  Slate  ' 
Opportunity  of  piling  ten  thousand  dollars  more  r 
upon  that  county.  They  don't  want  any  more  In 


508  SOUTH  DAKOTA  DEBATES,  1889 

They  served  notice  on  me  when  I  was  elected  that  they  didn't  wish 
this  Convention  to  make  any  alterations  in  the  Constitution,  ex- 
cept such  as  are  provided  by  the  Enabling  Act,  and  specifically 
referred  to  this  matter  of  indebtedness ;  so  I  have  had  official 
notice  served  on  me  in  that  respect.  Now,  as  the  gentleman 
from  Davison  county  has  well  said,  where  you  grant  the  oppor- 
tunity to  incur  indebtedness  to  the  State,  the  indebtedness  will 
be  almost  certain  to  follow.  In  entering  upon  statehood  we  are 
obliged  to  curtail  our  expensive  habits.  There  is  no  question  about 
it.  We  cannot  as  a  State  go  on  in  the  lavish  way  in  which  the  affairs 
of  the  Territory  have  been  conducted.  Our  income  has  been  cut 
down,  and  for  years  we  will  have  to  live  upon  a  more  economical 
basis  than  we  have  been  doing.  It  is  hard  to  abandon  an  extrava- 
gant mode  of  living  and  come  down  to  the  requirements,  but  it 
is  absolutely  necessary  to  do  it.  We  are  confronted  with  a  reduced 
income,  and  if  the  opportunity  is  open  before  us,  upon  entering 
upon  statehood,  to  continue  for  a  time  lavish  expenditures,  by 
incurring  further  indebtedness,  I  tell  you,  gentlemen,  we  will 
incur  that  indebtedness.  The  members  of  the  Legislature  cannot 
and  will  not  have  the  power  to  stand  up  against  the  pressure  which 
will  be  brought  to  bear  upon  them.  This  thi  g  will  be  "absolutely 
necessary"  and  that  thing  will  be  "absolutely  necessary",  ac- 
cording to  the  advocates  of  certain  measures.  The  pressure  will 
be  so  great  that  such  indebtedness  will  certainly  be  incurred. 
How  are  we  going  to  meet  '.his  extraordinary  addition  to  our 
expenditures?  When  an  individual  has  a  certain  and  fixed  income, 
and  is  in  debt  to  a  certain  sum,  and  he  finds  this  income  is  not  suf- 
ficient to  enable  him  to  live  in  the  manner  in  which  he  is  accus- 
tomed to  live,  and  to  pay  interest  upon  his  debts,  is  it  a  matter  of 
good  judgment  for  that  individual  to  borrow  more  money  to  enable 
him  to  continue  living  in  the  manner  in  which  he  has  been  living, 
or,  to  enable  him  perchance  to  build  an  addition  to  his  house? 
Is  that  a  matter  of  good  policy  for  an  individual?  And  isn't  the 
same  principle  which  would  apply  to  the  individual  to  apply  to 
us  as  a  State?  It  seems  to  me,  in  entering  upon  statehood,  that  if 
there  is  any  virtue  in  the  Constitution  it  is  in  its  power  to  limit  the 
Legislature.  The  most  important  clauses  in  this  Constitution  are 
those  limiting  clauses  and  I  certainly  think  if  we  have  the  powrer 
to  make  such  an  amendment,  it  is  good  policy  to  adopt  such  an 
amendment  as  that  proposed  here. 


LIMIT  OF  INDI-.BTKI  •  509 

Mr.  Da  vies,  of  Edmunds:     Mr.  Chairman  ;  we  have  facing  us 
two  propositions,  and  we  can't  avoid  considering  t la- 
Omnibus   Bill  and  this   $500,000  limitation.     And    1   think    I 
the  way   out  of  this  through  a  modification  of  the  amen. 
made  by  the  gentleman  from  Codington.     It  is  no  time  in   our 
proceedings  to  offer  an  amendment  or  a  substitute,  «.r  I  would 
offer  it,  so  I  will  talk  on  the  amendment.     We  must  m 
quirements  of  the  Omnibus  Bill  and  assume  our  proportion 
Territorial  indebtedness     That  is  a  fixed  fact  ;  no  <me  of  us  v 
to  dodge  that  i?sue.     Again,  we  l-ave  right  here  a  Constitution 
which,  as  the  gentleman  says,  we  have  inherited  as  a  State       \\Y 
are  also  doomed  to  inherit  this  Section  2  of  Article  XIII  unl, 
assume  we  have  the  authority  here  to  amend  this  Constitution. 
Now,  then,  how  will  we  get  out  of  this  predicament,     I  ^ay  we 
will  get  out  of  it  on  the  same  principle  that  we  have  b. 
out  of  these  other  predicaments.     What  is  that  r      I) 

0  do  in  the  way  of  modifu  at  ins  to  get  out  of  this  preiiie  annnt , 
and  no  more.     Now,  I  think  there  is  $200,000  that  the  i 
ment  covered.     I  should  rather  have  it  $100,000,  but  my  id 
this:     Can't  this  be  so  modified  that  the  sum  SSoo.ooo  \\ill  p 
as  it  is  in  the  Constitution,  but  instead  of  saying  $200,000,  make 
it  $100,000  of  $200,000,  but  in  such  a  way  that  the  limit  of  $500,- 
000  will   always  stand.     To  illustrate,   the  amendment    nov. 
$200,000;  we  have  $750,000  indebtedness;  that  makes  $950.000. 
After  we  pay  $900,000  of  this  debt,  how  much  can  v. 
Just  $200,000.     We  will  still  have   S50.000.      My  idea   is  t! 
so  modify  it  that  after  we  pay— say  we  pay  SoOO.oon  ..ut   of  this 
$950,  000,  we  have  a  debt   of  $350,000  left,  but   still,  let   us  make 
this  amendment  so  self-acting  that   at    that   time 
debt  $150,000  more,  or,  make  it  S5(M>,<M>0.     The  m-.st  v. 
by  debt  is  $100,000  until  sui-h  a  time  that  the  balance 
unpaid   and   the   amount    assumed    will    not    exceed    $500,0' 
think    the    gentleman    from    Davison,    <>ur    honoi 
intended  that  that   $100.000  should  be  the  limit  bevond  wl:: 
could  not  go  until    the   time  wl  en   that    an-; 
should   QOl  -500, 000.      I   would   like   i 

fnnn  Codington  this  question;  whether 
yptir   amendment    that    after  we    pay    BO   mr. 
indebtedness      SUppOSC    we    pa 
then  \ve  could  assume'  S!  50.01- 


510  SOUTH  DAKOTA  DEBATES,  1889 

limit;  so  that  at  any  time  in  the  future  we  can  go  from  $100,000 
to  such  a — 

Mr.  Van  Buskirk,  of  Codington:  There  is  no  difficulty  in  get- 
ting that  into  shape,  so  it  can  be  done.  I  drew  this  somewhat 
hurriedly. 

Mr.  Davies,  of  Edmunds:  I  would  like  you  would  draw  this 
amendment. 

Mr.  Price,  of  Hyde:     Mr.  President ;  I  have  never  been  accused 
of  being  a  very  able  financier,  except  perhaps  in  disbursing  of  the 
funds  which  came  into  my  hands,  but  I  want  to  say  to  this  Con- 
vention that  I  am  in  favor  "of  the  old  flag  and  an  appropriation", 
and  am  therefore  in  favor  of  adopting  the  report  of  the  Committee. 
There  would  be  a  great  deal  of  force  in  the  argument  of  the  gentle- 
man from  Mqpdy  if  we  were  assembled  here  for  the  express  purpose 
of  framing  a  Constitution  for  Moody  county,  but  we  are  here  acting 
for  the  proposed  new  State,  and  the  gentleman  must  remember  that 
Moody  county  forms  but  a  small  portion  of  that  State,  and  he  him- 
self is  a  very  small  portion  of  that  county!     Now  then,  I  apprehend 
from  what  has  been  said  in  opposition  to  this  Article  as  presented 
by  the  Committee,  that  gentlemen  are  ready  to  vote  for  it,  could 
they  convince  themselves  that  we  had  a  right  to  do  it.     In  other 
words,  they  seem  to  think  that  it  would  be  an  infringement  upon 
the  provisions  of  the  Omnibus  Bill,  and  then  some  of  them  go  so  far 
as  to  state  that  it  would  be  in  direct  opposition  to  the  Constitution 
as  adopted  by  the  Convention  of  1885.     Now,  gentlemen,  I  have 
great  respect  for  the  Constitution  which  was  adopted  in  1885.     I 
have  supreme  respect  for  the  Omnibus  Bill.     Why?     Because  it 
was  passed  by  an  American  Congress,  which  will  go  into  history 
as   admitting  three  imperial  Territories  as   four  States,  into  the 
American  Union,  and  it  wras   done  by  a  DEMOCRATIC  Congress, 
and  I  am  somewhat  in  sympathy,  probably,  with  the  Democratic 
party!     But  I  don't  believe  that  this  Omnibus  Bill  is  such  a  s  cred 
document  as  men  would  have  you  believe.     I  take  the  same  posi- 
tion that  I  did  upon  the  assembling  of  this  Convention,  that  we 
could  entirely  ignore  the  Constitution  of  1885,  and  if  it  were  ratified 
by  the  people  and  the  proclamation  issued  by  the  President,  it 
would  have  been  the  Constitution  of  the  new  State  of  South  Da- 
kota, and  I  Apprehend  that  gentlemen  upon  the  other  side  will  not 
say  that  the  President  of  the  United  States,  whom  they  have  passed 
resolutions  endorsing  for  his  friendship. to  Dakota,  would  go  back 


DEBT  LIMIT  51 1 


upon  the  expressed  will  of  the  people  of  the  Territory  of  Dakota, 
as  decided  at  the  ballot-box.  He  could  not,  gentlemen;  he  is  such 
an  everlasting  friend  of  this  Territory'. 

It  is  urged  that   this  amendment  ought  to  prevail 
it  would  be  in  the  interest  of  economy.     I  think  there  is  one  matter 
which  has  been  lost  sight  of  by  the  members  of  this  Convention. 
Now,  then,  if  we  increase  this  debt,  or  if  \se  limit  it  to  $500,000 
regardless  of  the  nearly  $800,000  of  a  debt  which  is  now  hanging 
over  us,  it  is  necessitated  that  this  $500K000  will  be  squan<: 
that  it  is  unsafe  to  trust  a  representative  body  of  men  coming 
direct  from  the  people,  and  that  they  will  necessarily  squander 
this    $500,000!     Why,    g.-ntlemen   of   the   Convention,    one    party 
in  this  Territory  has  had  control  of  it  ever  since  it-  -.em  e 

and  is  there  anything  upon  the  statute  books  or  the  appropriation 
ledgers  to  show  that  they  have  ever  abused  the  authority'     When 
my  Republican  friends  vote  against  this  proposition,  they  have 
got  to  say  that  they  cannot  trust  a  Republican  Legislatur 
we  ought  to  see   that  a  Republican  Legislature   will   be  el- 
I  have  more  confidence  in  your  party,  gentlemen,  than  you  .have 
yourselves;  I  am  willing  to  trust  this  parts — the  represent, 
coming  direct  from  the  common  people  of  the  land,  and  I  ! 
they  will  not  squander  money  entrusted  to  their  care.     It  is  n»t 
absolutely  necessary  that  $500,000  in  bonds  should  be  voted  by 
the  Legislature,  it  that  money  is  not  necessary  to  carry  on  the  S 
and  I  don't  believe  they  will  do  it. 

Again,  gentlemen,  do  you  know  what  the  actual  runniiu. 
penses  of  the  new  State  will  be?      None  of  us  kn«»w  that.  r. 
we  make  a  close  estimate  of  it.     It  has  been  estimated  and 
by  gentlemen  who  have  been  upon  the  floor  that  about    S; 
would  be  derived  from  taxation  and  other  sources,  but  it  ni 
remembered,  that  that  is  upon  a   basis  of  a   two-mi: 
Do  you  want  to  go  on  record  as  saddling  the  full  limit  of  that 
taxation  on  a   people   who  are   living  on   wind  and   water  in   the 
summer  and  snow-balls  and  irieles  made  into  s«>uj».  in  the  winter? 
Our  crops  are  poor,  our  people  are  paupers,  and  \\v  atv  will 
let  somebody  in  the  future  help  pay  this  two-mill  I 
necessary  and  can  be  raised  at  four  or  live  per 

Mr.  Hole  of  Beadle:      I  want  t.»ask  s.  .me  I.uv 
a    business    proposition.       We     will     ha 


512  SOUTH  DAKOTA  DEBATES,  1889 

$750,000.  I  would  like  to  ask  this  Committee,  when  does  the  $750,- 
000  fail  due? 

Mr.  Sherwood,  of  Clark:     I  am  unable  to  answer  the  question. 

Mr.  Kellam,  of  Brule:  I  don't  think  any  gentlemen  cen  give 
an  accurate  answer  to  that  question.  Some  of  these  bonds  are 
option  bonds,  and  I  don't  know  but  all  of  them,  and  at  this  time 
the  bonds  are  under  the  option ;  that  is,  they  may  be  called  at  any 
time. 

Mr.  Hole,  of  Beadle:  What  rate  of  interest  are  they  now 
bearing? 

Mr.  Kellam,  of  Brule:  From  four  to  six  per  cent.  There 
are  but  $710,000  in  bonds  which  South  Dakota  assumes.  The 
other  is  an  estimate  amount.  The  amount  of  bonds  assumed  is 
$710,000. 

Mr.  Hole  of  Beadle:  I  had  heard  it  intimated  that  this  $710,- 
000  was  drawing  a  high  rate  of  interest  and  there  was  an  option 
now  to  pay  it  off. 

Mr.  Kellam,  of  Brule:  There  are  certain  six  per  cent  bonds 
upon  which  the  option  has  occurred.  They  may  be  retired  at 
any  time  by  the  payment  of  them  now.  There  is  no  question  but 
what  bonds  could  be  issued  by  the  newr  State,  bearing  not  to  ex- 
ceed 3  y<>  and  4  per  cent.,  and  sold,  and  the  money  realized  upon 
these  bonds  used  for  the  retirement  of  the  six  per  cent,  bonds. 

Mr.  Hole:  And  if  we  adopt  the  report,  or  the  amendment, 
would  we  have  power  then  to  refund  any  part  of  the  $750,000,  or 
would  \ve  have  to  pay  it?  If  we  have  no  power  to  refund  that,  it 
wrould  not  be  a  business  policy  to  so  tie  ourselves  that  we  could 
not  refund  that  and  float  it  at  a  lower  rate  of  interest. 

Mr.  Clough,  of  Codington:  Here  is  a  question  that  I  want  to 
ask:  We  have  been  listening  to  a  great  deal  of  talk  about  the 
solemnity  of  this  Constitution.  Here  is  Section  5:  Let's  read  it. 

"Consent  is  given  that  Congress  may  make  such  provision 
for  the  payment  by  this  State  of  the  existing  indebtedness  of  the 
Territory  of  Dakota  as  it  shall  deem  just  and  equitable,  and  this 
State  shall  assume  and  pay  so  much  thereof  as  Congress  may 
provide." 

Now  then,  Mr.  President,  after  some  weeks  and  months  of 
careful  study  of  this  Constitution,  I  do  not  think  many  of  us  are 
willing  to  assume  that  it  was  loosely  drawn  or  that  very  many  chances 
were  taken  or  much  liklihood  for  hiatus.  It  seems  to  me  if  this 


DEBT  LIMIT  513 


Section  2,  that  declares  that  $500,000  shall  be  the  aggn 
had  been  meant  to  cover  the  indebtedness  then  outstanding  a] 
Dakota,  that  it  would  have  read  in  this  way:     "Consent  is 
that  Congress  may  make  such  provision  for  the  payment  by  this 
State  of  the  existing  indebtedness  of  the  Territory  of  Dakota  as 
shall  be  in  conformity  with  Section  2."     Now,  I  do  believe  that 
if  the   $500,000  had  been  meant  to  cover  the   then   imlebi. 
that  it  would  have  so  read — as  I  have  read  it— "in  conformity 
with   Section   2";  because   this   Constitution   is   most    wonderfully 
overlapped  and  under-lapped.     I  do  not  set1,  those  words  being  lack- 
ing, how  it  can  be  otherwise  than  that  the  $500,000  was  meant  to 
be  outside  of  the  then  existing  indebtedness.     You  may  reason  all 
the  way  along  through  the  line  of  analogies,  and  they  have    pro- 
vided this  and  that  all  the  way  through  the  Constitution.      I" 
not  say  "in  conformity  with  Section  2",  but  it  does  say  "Coi 
may  make  provision", — and  then  it  sticks  on  the  other. 

Mr.  Caldwell,  of  Minnehaha:      Mr.   President;  the  poin- 
by  the  gentleman  from  Beadle  it  seems  to  me  ought  to  satisfy  this 
Convention  that  it  not  only  has  not  the  power  to  change  the  sum  of 
$500,000,  but    that  it  would  be  very  bad  business  policy  for  it  to 
make  any  change  in  such  amount. 

Now,  as  lias  been   stated  by  the  Chairman  of  the  Committee 
that    went    to  Bismarck,  there   are    considerable   amounts   of   this 
$710,000  bonds,   which  are   running  at  a   higher  rate   of  i: 
than  it  would  be  possible  for  the  State  of  South  D, 
but  when  the  State  of  South  Dakota,  if  it  shall  have  the  powi-r  to 
do  so,  undertakes  to  declare  its  bonds  open      these  hi;/i;  I 
—and  undertake  to  issue  new  bonds  at  a  lower  rate  «>f  interest,  in 
their   stead,   it    transfers   the   amount    of   that    other  indebi. 
from  the  Territorial   indebtenness  inherited,  over  t»  actual 
indebtedness    directly    assumed.      NOW.    if    the    limitation    1- 
upon  the  State  to  such  an  extent   that  it   shall   1 
way   of  8100,000  it  can't  then  possibly  If  <>f  the 

tunity   which   would  offer  for  securing  of  a   lowi-r  rate  of  in! 
with   the   $500,000  limitation    upon    the   State   ind<  pure 

and  simple.     The    State    will    have    power   to   take   up 
bonds  and  issue  a  lower  rate  of  interest  b«mds.  for  :'  "i»nt ; 

and  so,  for  this  convention  to  reduce  the  limit.-.: 

and  simple  State  indebtedness  to  a  sum  l.ssthan  | 

be    merely    crippling    the    State    ami    ptvvcnting    it    fr-  • 


514  SOUTH  DAKOTA  DEBATES,  1889 

itself  of  the  advantage  it  would  otherwise  have, — not  being  able 
to  trade  off  Territorial  high-rate  bonds  for  State  low-rate  bonds. 
So  it  seems  to  me  that,  whether  this  question  be  looked  at  from 
the  standpoint  of  the  power  which  this  Convention  possesses 
under  the  Enabling  Act,  or  whether  it  be  looked  at  from  the  point 
of  what  is  best  interest  of  the  State,  unquestionably  that  that 
limitation  of  $500,000  should  remain  precisely  as  it  is. 

Mr.  Hole,  of  Beadle:  Mr.  President;  that  my  position  may 
not  be  misunderstood,  I  wish  to  say  that  I  am  not  one  of  those 
who  wish  to  increase  the  indebtedness.  I  think  the  intention  of 
the  framers  of  the  Constitution  of  1885  was  that  the  indebtedness, 
which  should  be  found  due  from  the  Territory,  was  to  be  taken 
from  the  $500,000,  and  that  the  balance  of  it  should  be  the  lee- way 
and  my  position  today  is  that  we  should  approximate  that  as  nearly 
as  possible.  Our  indebtedness  today  is  away  beyond  the  amount 
of  that  indebtedness  the  Omnibus  Bill  provides  we  shall  pay,  and 
that  is  in  the  neighborhood  of  $750,000.  Now  the  indebtedness 
which  we  will  start  in  with  is  just  as  much  covered  by  the  Omnibus 
Bill  as  the  $750,000.  We  have  exceeded  that  $500,000.  Let 
us  keep  inviolate  the  Constitution  as  far  as  the  $500,000  is  con- 
cerned, but  make  it  impossible  for  us  to  use  any  of  that  $500,000 
until  this  other  has  been  either  converted  into  State  debt  or  paid. 
Now,  I  think  it  is  proper  to  convert  as  much  of  the  $750,000  as 
possible  under  the  $500,000  limit,  into  a  State  debt  at  a  lower 
rate  of  interest,  thereby  making  from  $15,000  to  $18,000  a  year. 
That  is  a  business  proposition,  coming  to  us  as  business  men;  and 
that  this  may  be  very  thoroughly  studied  and  canvassed,  I  would 
think  best  to  refer  it  back  to  the  Committee.  The  question, 
and  the  report  as  adopted  here,  will  effect  the  negotiability  of  these 
bonds,  and  I  think  that  that  question  should  be  considered  by 
the  Committee — and  so  report — to  give  such  power  to  do  this, 
and  so  that  there  will  be  no  question  about  the  bonds  when  issued 
and  that  they  can  be  floated  at  the  lowest  rate. 

And  I  move  you  that  this  matter  be  referred  back  to  the  Com- 
mittee, with  the  view  of  shaping  it  up  to  meet  the  desires  of  the 
Convention  that  have  been  expressed  here. 

Mr.  Price,  of  Hyde:  Mr.  Hole,  do  you  think  this  affects  the 
negotiability  of  those  bonds  if  it  is  submitted  to  the  people  and 
ratified  by  the  people,  and  we  are  admitted  as  a  State  in  the  Union, 
under  it? 


DEBT  LIMT  515 


Mr.  Hole,  of  Beadle:     I  want  this  Constitution  to  be  so  plain 
that  they  can  make  it  as  State  debt  and  get  a  lower  rate  of  int 
||Mr.  Corson,  of  Lawrence:     Mr.   President;  I  rise  to  ma 
suggestion  in  regard  to  this  matter,  which  has  occurred  to  me  from 
reading  Section  3,  as  to  the  construction  that  has  been  put  upon 
this  matter  of  $500,000. 

The  language  of  Section  2  is:  "The  State  may  contract  debts 
never  to  exceed  with  previous  debts  in  the  aggregate  $500,000". 
Previous  debts  of  what?  Of  the  Territory  of  Dakota,  or  of  the 
State?  It  seems  to  me  Section  3  throws  some  light  upon  this 
Section : 

"The  debt  of  any  county,  city,  town,  school  district,  or  other 
subdivision,  shall  never  exceed  5  per  centum  upon  the  assessed 
value  of  the  taxable  property  therein." 

Now  mark ; 

"In  estimating  theamount  of  indebtedness  which  a  municipal- 
ity or  subdivision  may  incur,  the  amount  of  indebtedness  contr 
prior  to  the  adoption  of  this  Constitution  shall  be  included." 

It  would  seem  by  the  care  they  have  taken  in  Section  3  that 
they  intended  by  Section  2  to  only  include  the  indebtedness  of  t  he- 
State,  which  the  State  might  contract  after  it  became  a  State. 

But  I  rise  more  particularly  at  this  time  to  second  the  motion 
of  the  gentleman  from  Beadle,  for  this  reason:     I  was  infor: 
few  days  ago  by  the  Treasurer,  that  we  have  quite  a  large  amount 
of  bonds— $150,000.  I  think— that  are  drawing,  I  believe,  6  per 
cent,  now,  but  the  parties  who  hold  the  bonds  won't  tak 
per  cent.     Yet  if  he  had  the  power,  he  could  issue  refunding  bon«Ls 
at  a  lower    rate  of  interest,  negotiate  them  in  New  York,  and  use- 
that  money  to  take  up  the  old  bonds.     It  seems  to  me  that  this 
Convention   ought  to  devise   some   way    by    which   this  $750,000 
indebtedness,  at  all  events,  can  be  refunded  from  time   to 
I  do  not  believe  it  is  policy  for  us  to  attempt  to  pay  it  oft",  and  it 
looks  to  me,  upon  reading  the  sections  of  this  Article  this  morning 
as  though  it  will  be  necessary  to  amend  that  before  long,  1- 
I  don't  believe  it   would  he  best  for  u-  :   that  m<i. 

ness  in  tin- next  ten  years.     I'  would  be  an  injustice  to  our  pi 

to  ask    them   to  pay   <»tT  all   that   indebtedm 

subsequent   generation  not   to  pay  a  dollar.      It  is  n-.t   ' 

All   we  ought   to  be  asked  tW  the  next  tv 

COffie,   is   the   payment    of   the   inter- 

before  long  we  will  find  it  necessary   to  amend  that  Section 


516  SOUTH  DAKOTA  DEBATES,  1889 

Constitution,  and  I  think  it  ought  to  be  provided  for  at  the  very 
next  session  of  the  Legislature,  striking  out  that  section  requiring 
us  to  pay  one-tenth  of  the  principal,  as  well  as  the  interest. 
Provide  for  the  interest,  but  allow  the  principal  to  remain.  But 
if  we  can  make  some  provision  at  this  time  by  which  the  Treas- 
urer can  refund  these  bonds,  it  seems  to  me  a  business  proposition 
and  policy  to  do  so. 

And,  while  I  have  great  confidence  in  the  Committee,  I  would 
move  as  an  amendment  to  the  motion  of  the  gentleman  from 
Beadle,  that  the  gentleman  from  Beadle  and  the  President  of  this 
Convention  be  added  to  the  Committee  for  the  purpose  of  devising 
some  way  by  which  wre  can  from  time  to  time  refund  the  $750,000 
provided  for  in  the  Constitution  now — refund  it  by  issuing  other 
bonds  and  selling  them  in  the  market  and  getting  the  money  with 
which  to  redeem  these  option  bonds,  and,  as  it  is  a  very  important 
matter,  I  think  we  ought  not  to  hurry  over  it  too  much.  If  we 
can  provide  for  the  funding  of  this  $750,000  without  providing 
for  this  $500,000  limitation,  I  should  be  in  favor  of  reducing  the 
amount  to  $100,000  or  $150,000.  I  think  our  Constitution  is  so 
easily  amended  that  it  will  only  take  two  years  at  the  farthest  to  ' 
provide  for  an  indebtedness  of  that  kind;  and  therefore  I  would 
be  in  favor  of  limiting  it,  if  it  can  be  done  at  this  time;  but  at  the 
same  time  I  want  to  be  very  careful  that  we  provide  for  the  re- 
funding of  this  $750,000,  so  that  there  can  be  no  possible  question 
about  that.  We  know  how  careful  capital  will  be,  and  especially 
where  they  advance  money  upon  bonds  at  a  low  rate  of  interest. 
They  want  to  feel  perfectly  secure  and  they  want  long-time  bonds 
too.,  Now  then,  if  that  can  be  so  arranged  in  our  Constitution  to 
cover  our  refunding,  then  I  should  most  certainly  be  in  favor  of 
reducing  the  amount  of  indebtedness  which  the  State  can  incur 
in  the  future  to  as  low  an  amount  as  has  been  stated — $100,000 
or  SI 50,000. 

I  therefore  urge  this  matter  be  referred  and  that  these  two 
gentlemen  be  added  to  the  Committee,  to  assist  them  in  preparing 
some  scheme  by  which  this!$7 50,000  can  be  taken  care  of. 

Mr.  Wood,  of  Pennington:  Mr.  President;  we  have  got  to 
dispose  of  this  matter  and  we  ought  to  do  it  now.  Our  time  is 
very  short.  The  position  of  the  gentleman  from  Davison  is 
unquestionably  correct,  to-wit:  The  Omnibus  Bill,  by  reason  of 
the  size  of  the  debt  we  must  assume,  rendering  it  necessary,  by 


DEBT  LIMIT  517 


that  fact,  that  we  must  make  such  amendment  as  the 
of  the  case  requires.     I  agree  with  that  completely.     Tin-  amend- 
ment  is  simply  increasing  the  $500,000  to  $850,000,  in  effect,  hut 
it  don't  cut  off  or  abridge  the  power  to  place  that  debt  in  any  form 
which  the  Legislature  may  desire,  to-wit:     Refund  ;  issue  new  l>«>n<ls ; 
take  up  the  old  ones;  as  the  proposition  stands  under  the  amend- 
ment.    Now,  if  that  is  not  the  case,  I  surely  don't  understand  any- 
thing about  the  meaning  of  words.     They  can  refund  and  take  up 
that  indebtedness  if  they  shall  desire  to.     The  debt  is  pro 
for  and  the  refunding  is  provided  for.     A  re-reference  can  a; 
no  useful  purpose,  and  I  am  sure  we  have  consumed  sufficient  time 
here. 

Now,  with  reference   to  the  adoption  of  the  amendment  of 
the  gentleman  from  Moody  county — the  amendment  of  the  gi 
man  from  Codington   county   is  practically   the  same  thing;  the 
amount  is  a  little  larger,  and  that  is  all — I  don't  think   v 
safely  put  it  in  that  way  with  any  one  with  a  power  to  create  this 
amount  of  indebtedness,  under  the  circumstances  in  which  our 
State  will  be  placed  at  first.     With  Iowa  it  would  be  dii: 
She    has   the    power   to   contract   $250,000   indebtedness.     '1 
she  owes  nothing.       Iowa  today  is  not  paying  one    cent  on  out- 
standing indebtedness;  she  has  paid  off  the  last  dollar.     It  : 
as  necessary  as  it  is  in  the  new  State.     It  is  not  whether  v. 
safely    trust    the    new    Legislature.     It   is   a    question.     Can    the 
State,    under    these    circumstances,    resist    the  '  temptation 
cessfully  to  go  to  the  limits  of  the  indebtedness?     I  don't  think 
it  can  be  done  and  therefore  I  think  we  ought  to  make  the  limit  as 
low  as  possible.      Now,  having  the  power  t<>  amend  the  am«  : 
indebtedness,   of  course   the    power   to  amend   gives  us   the   right 
to  amend  in  any  manner  we  may  agree  upon,  and  this  : 
to  increase  that  to  $800,000,  with   the  limitation 
now  stands,  seems  to  me,  carries  with  it  the  power  to   n-fund 
the   whole   difficulty    is   overcome   and    the   amendment   is   proper 
and  properly  made  when  we  adopt  the  report  as  amended 

Mr.  Davies.  of  Kdmunds:  Mr.  President;  I  rise 
of  order.  There  is  a  motion  before  the  house,  and  a 
neither  of  which  have  been  dispose. 1  of. 

Mr.   President,  pro  tein:      The   pr«-j-  '1't    the  re- 

port of  the  Committee;  to  that  I 
iment    by    inserting    "$P 


518  SOUTH  DAKOTA  DEBATES,  1889 

gentleman  from  Codington  moves  to  change  that  to  "$200,000"; 
to  that  the  gentleman  from  Clay  raises  a  point  of  order,  which 
the  Chair  sustains;  the  gentleman  from  Beadle  moves  to  refer  the 
matter  back  to  the  Committee ;  the  gentleman  from  Lawrence 
moves  as  an  amendment,  that  the  gentleman  from  Beadle  and  the 
•President  of  the  Convention  be  added  to  that  Committee,  which 
motion  has  had  no  second. 

The  question  now  recurs  upon  the  motion  to  refer  this  back  to 
the  Committee.  Is  the  Convention  ready  for  the  question? 

Mr.  Edgerton,  of  Davison:  Mr.  President;  if  I  remember  the 
discussion  in  the  early  hours  of  this  Convention,  in  which  I  argued 
that  we  were  restricted  in  our  powers  by  the  Omnibus  Bill,  some 
very  eminent  gentlemen  took  the  opposite  view.  It  is  with  great 
satisfaction  that  I  find  today  they  are  more  extreme  in  their  strict 
construction  of  the  Omnibus  Bill  than  I  am. 

My  eminent  friend  from  Hyde — and  no  one  admires  his  elo- 
quence more  than  I  do — asks  me  if  I  am  afraid  to  trust  the  Legis- 
lature. I  answer,  with  certain  limitations,  never;  but  I  am  less 
afraid  to  trust  the  people  of  this  commonwealth.  I  can  imagine 
a  time  next  winter  when  there  will  be  very  few  Democrats  in  the 
Legislature,  but  there  will  be  a  great  many  of  them  at  the  polls! 
I  want  them  to  all  have  a  chance  to  vote  upon  that  question; 
I  want  my  friend  himself  to  vote  upon  that  question  when  the 
Legislature  shall  submit  the  amendment.  In  all  probability  he 
will  have  no  vote  in  the  Legislature,  and  I  want  him  to  have  the 
power  to  vote  upon  this  question! 

He  asks  me  if  I  am  afraid  to  trust  the  Legislature.  All  through 
this  Constitution  there  are  limitations;  limitations  of  the  most 
extraordinary  kind.  I  call  the  gentleman's  attention  to  the  lim- 
itations on  the  Legislature:  It  has  no  power  to  locate  or  change 
a  county  seat — and  yet  the  gentleman  asks  me  if  I  am  afraid  to 
trust  the  Legislature.  It  has  no  power  to  grant  divorces;  nor  to 
change  the  names  of  persons  or  places,  or  to  constitute  one  person 
the  heir-at-law  of  another;  or  to  regulate  county  and  township 
affairs;  or  to  incorporate  cities,  towns  and  villages,  or  change  or 
amend  the  charter  of  any  town,  city  or  village,  or  to  lay  out,  open, 
vacate  or  alter  town  plats,  streets,  wards,  alleys  or  public  ground; 
nor  to  provide  for  sale  or  mortgage  of  real  estate  belonging  to  minors 
or  others  under  disability ;  nor  to  authorize  persons  to  keep  ferries 
across  streams  wholly  within  the  State ;  nor  to  remit  fines,  penalties 


DEBT  LIMIT  519 


or  forfeitures;  nor  to  grant  to  an  individual  tian  «T  cor- 

poration  any  special  or  exclusive  privilege,  immunity  or  franchise 

whatever;  nor  to  provide  for  the  management  <>f  eomn.< 

nor  to  create,  increase  or  decrease  i< 

of  public  officers  during  the  term  fo    which  officers  an-  elect 

appointed.     And  yet  the   gentleman  asks  me  if  I  am  afraid   to 

trust  the  Legislature! 

As  I  said  before  and  have  frequently  said,  there  is  probably 
no  other  Constitution,   with  possibly    that   of  the  State  -.1"   Penn- 
sylvania excepted,  that  is  so  guarded  in  its  limitations  and  r< 
tions  of   the   powers  of   the   Legislature,  as  the   Constituti 
South  Dakota.     And  it  is  because  the  framers  of  this  chose  to  re- 
strict the    Legislature  and  to  say  that  they  should  n»t  exceed  the 
limitations  except  by  submitting  the  question  to  the  people. 

Now,  as  I  said  the  first  time  I  occupied  the  floor  on  this  ques- 
tion, if  it  is  necessary  to  increase  that  indebtedness,  all  \  «u  have 
to  do  is  to  have  the   Legislature  submit  the  proposition   t..  the 
people;  if  it  shall  have  been  found  necessary  to  increase  that  in- 
debtedness to  $200,000  or  $300,000  or  $500,000,  all   you  ha 
to  do  is  to  have  the  Legislature,  by  a  bare  majority,  submit  the 
proposition  to  the  people,  and  the  people,  by  a  bare  niajorit 
increase  the  State  debt. 

Now,  I  will  ask  my  friend  from  Hyde,  if  he  is  afraid  t<>  trust 
the  people  of  this  commonwealth  upon  that  most  important  ques- 
tion? 

Mr.  Price,  of  Hyde:  Xo,  Sir,  I  am  not  afraid  to  trust  t; 
pie,  and  I  am  not  afraid  to  trust  the  Legislature  either,  b. 
its* members  come  direct  from  the  people. 

Mr.  Edgerton,  of  Davisnn:      \o\v.  one  thing  more,  outside  <>t 
this  question.     So  far  as  the'dignity  ami  importance  of  this  Omni- 
bus  Bill   is  concerned,   the   gentleman   and    I 
willing  to  accord  more  credit  than  1  t<>  that  handful  <>f  I' 
not  exceeding  twenty  in  number,  who,      when  it  Uvaiiu-  ine\ 
that    Beniaman    Harrison   was  to  be   the    President   ••!    the    I 
States!       VOted    in    the    Senate    and    the    HOUM 
for  this  Omnibus  Bill.      It  was  the  unanimous  VOt 
lican  party  in  Congress.  ba>  ked  by  abmit  twenty  l>  'i  t  lu- 

ll ouse  of  Representatives!     1  Bay  this  out  of  no  di 
Democratic  party,  but  when  it  is  claimed  that   \v. 
admission  and  that  we  ha 


520  SOUTH  DAKOTA  DEBATES,  1889 

to  the  magnanimity  of  the  Democratic  party,  I  say  we  owe  it  to 
the  twenty  Democrats  \vho  voted  for  it  in  Congress,  and  to  the 
unanimous  vote  of  the  Republicans  in  Congress.  I  will  make  this 
exception,  that  the  Democratic  party  of  South  Dakota,  with  very 
few  exceptions — here  and  there  one — has  been  for  years  the  friend 
of  South  Dakota — as  much  as  the  Republicans;  and  upon  this 
question  we  have  stood  shoulder  to  shoulder  up  to  the  present 
time. 

Mr.  Van  Buskirk,  of  Codington:  Mr.  President;  when  I  drew 
this  amendment  and  put  $200,000  in  there  I  was  not  wedded  to 
the  sum  of  $200,000,  but  I  thought  it  well  to  retain  $500,000,  so 
that  when  we  should  have  disposed  of  and  paid  $710,000,  or  about 
$750,000,  then  this  sum  named  would  stand  in  the  Constitution 
as  adopted  in  all  of  its  intendments.  I  should  just  as  soon  have  it 
$100,000  as  $200,000,  but  I  want  to  retain  that  $500,000  in  its 
integrity.  I  want  it  so  that  when  these  other  sums  were  paid, 
that  this  $500,000  would  stand  there. 

Mr.  Da  vies,  of  Edmunds:  I  want  to  ask  if  your  motion,  sent 
to  the  table,  refers  to  that  fact? 

Mr.  Van  Buskirk,  of  Codington:  It  is  possible  that  the  sug- 
gestion of  my  friend,  Mr.  Hole,  who  has  possibly  a  little  more  ac- 
quaintance with  this  matter  of  bonds  than  I  have,  is  correct.  I 
would  prefer  that  there  be  no  change  that  there  will  be  no  question 
about  the  power  to  refund. 

Mr.  Wood,  of  Pennington:  I  understand  that  it  contains 
in  its  provisions,  power  to  refund.  I  understand  that  when  that 
is  paid  off  the  limit  will  stand  $100,000 ;  as  soon  as  the  debt  assumed 
by  the  State  from  the  Territory  is  paid  off,  the  debt  will  stand 
$100,000.  In  other  words,  we  simply  give  a  lee-way  of  $100,000 
over  the  debt  assumed. 

Mr.  Van  Buskirk,  of  Codington:  Now,  to  continue,  my  idea 
was,  as  I  said,  to  retain  this  $500,000  provided  for  here,  in  its  in- 
tegrity. I  do  not  think  it  is  any  violation  of  the  spirit  or  terms 
of  that  to  provide  the  limit;  say  to  limit  it  to  the  sum  of  $100,000 
or  $200,000.  When  I  put  the  sum  of  $200,000  in  there  I  did 
it  for  this  reason;  it  occurred  to  me  that  South  Dakota  might 
desire  to  build  a  capitol,  or  something  of  that  kind,  and  that 
$100,000  would  not  be  enough;  but  I  am  willing  $100,000  should 
go  in,  and  it  may  be  well  to  add  there  something  to  make  it  un- 


DEBT  LIMIT  521 


questionable  that  power  to  refund  is  given  and  that     the  ret:: 
shall  not  be  deemed  payment. 

I    am   in    favor   of   its  being  recommitted  here.      I  think  JXT- 
haps  the  Committee  now  may  take  it  up  and  handle  it  m. 
than  we  can. 

Mr.    Stoddard,   of   Brown:      Mr.    President;  is   the    ni<  • 
refer  it  back  to  the  Committee? 

The  President,  pro  tern:     Yes,  Sir. 

Mr.  Stoddard,  of  Brown:     Was  the  amendment  of  Mr   « 
to  add  Mr.   Hole  and  the   President  of  this  Convention   to  that 
Committee,  allowed? 

The  President,  pro  tern:    No,  Sir;  that  motion  was  r 

Mr.   Stoddard,  of  Brown:     Well,  I  will  second  that  r 
that  is,  if  the  President  will  consent.     I  will  second  the  nn>ti«>n  if 
the  President  will  agree  to  serve  on  that  Committee. 

Mr.   Edgerton,  of  Davison:     I  don't  think   I   would  agree   t<> 
serve   on   that  Committee.     My   convictions  are   too  w 
for  that.     I   think  my   friend  Mr.   Price,  or  the  gentleman 
Clay,    would   be    better   selections.     I    take    knowledge    that    my 
convictions  are  so  clear  and  well  settled  upon  that,  that   I 
be  an  improper  person  to  sit  upon  that  Committee.     I  would  much 
prefer  that  Judge  Corson  or  Judge  Price,  or.  some  other 
should  serve. 

Mr.    Stoddard,   of   Brown:      If  Judge   Corson   will   con- 
take  his  place,  I  will  second  the  motion. 

Mr.  Corson,  of  Lawrence:     No,  I  should  rath, 
am  not  a  good  financier.      But  some   way   should  he  provi.: 
refund  this  indebtedness. 

Mr.  ^Stoddard,  of  Brown:      Well.    I   am  in   favor 
referred  back   to  the   Committie,  and   then   they    will   > 
courtesy   to  these  gentlemen   <>f  asking   their  ad\; 
think  it  is  no  more  than  prudent  that  we  iv!i  r  this  nut1- 
the  Committee  no\v,  and  for  them  r  their  repor 

it  in  at  a  later  time.      We  cai 
would  rather  go  home  having  this  : 
sible.    and    rertamlv    the  of    this    < 

unanimously   convinced   that   the  r-  | 
gested. 

Mr.  Jolley,  of  Clay:     Mr.   IV 

mittee    that    te: 


522  SOUTH  DAKOTA  DEBATES,  1889 

to  go  over  this  whole  matter  again.  It  has  been  clearly  demon- 
strated that  the  report  of  the  Committee  and  the  signing  of  the 
rsport  of  the  Committee  doesn't  bind  anyone;  after  we  have 
agreed  to  something,  then  it  is  discussed  here  on  the  floor  of  the 
Convention  and  those  men  who  have  signed  the  report  go  back 
2n  it  and  vote  some  other  way.  If  there  is  anything  in  the  report 
of  this  Committee  that  don't  agree  with  the  views  of  any  of  the 
gentlemen,  there  is  certainly  a  way  to  amend  it  and  make  it  sat- 
isfactory. This  Committee  could  not  agree  among  themselves; 
this  is  a  compromise.  The  Chairman  had  serious  objection  to 
signing  such  a  report  as  this,  but  owing  to  the  eloquence  of  certain 
gentleman,  he  finally  did  so.  I  represent  the  same  element  in  the 
Republican  party  that  my  friend  from  Hyde  does  in  the  Demo- 
cratic party,  with  this  difference;  I  never  have  any  money  of  my 
own  to  spend;  and  I  also  differ  from  him  in  this;  that  r.o  one  I 
ever  knew  of  has  ever  trusted  me  to  spend  any  money  of  theirs! 
If  necessary,  let  us  go  into  Committee  of  the  Whole,  but  don't 
allow  the  spectacle  to  again  occur  in  this  Convention  of  having 
a  committee  sign  a  report  and  then  eleven  of  the  twenty-five 
members  go  back  on  it. 

(Cries  of  "Question,  question,  question".) 

The  President,  pro  tern:  The  question  before  the  house  is 
on  the  motion  of  the  gentleman  from  Beadle  to  refer  this  back  to 
the  Committee.  Is  the  Convention  ready  for  the  question? 

Mr.  Sherwood,  of  Clark:  Mr.  President;  that  Committee 
cannot  possibly  agree  on  any  further  report.  We  did  the  best  we 
could  to  agree  on  what  we  have  now  got  before  the  Convention; 
but  if  it  should  come  back  at  all,  what  is  the  object  of  referring 
that  portion  of  the  report  drafted  by  the  Committee  from  North 
Dakota?  If  it  should  go  back  at  all,  I  ask  the  mover  of  it  to  refer 
only  that  portion  of  it  to  the  Committee  that  has  been  under  dis- 
cussion here. 

Mr.  Hole,  of  Beadle:  The  only  thing  I  had  in  my  mind  was 
the  proper  wording  of  this  matter  with  regard  to  bonds,  so  there 
would  be  no  question  as  to  the  negotiation  of  them. 

Mr.  Jolley,  of  Clay.     Well,  move  an  amendment  to  this  report. 

Mr.  Hole,  of  Beadle:  Such  things  can  be  done  better  in 
Committee,  and  I  think  this  Convention  is  ready  to  adopt  the  report 
of  this  Committee  when  that  is  made  clear. 

Mr.  Spooner,  of  Kingsbury:     Mr.  President;  as  a  member  of 


DEBT  LIMIT 


that   Committee,   I    shall   oppose   the   re-referring  of  this   r 
All  considered  it  carefully  and  honestly,  and  the  report  was  a  com- 
promise, and  if  it  is  re-referred  it  will  come  in  the  same  shape  that 
it  did  before,  and  we  will  have  the  same  ground  to  go  over. 
I  will  give  you  good  warrant  for  that.      Not  that  we  wish  t<>  make 
the  limit  of  the  indebtedness  far  above  what  it  should  IK-,  but  tin- 
question  of  power  has  come  up  before  this  Convention  and  in  our 
Committee  in  such  a  manner  that  we  have  been  afraid  to  touch 
those  matters;  and  now  you  might  as  well  consider  the  n 
here,  in  Committee  of  the  Whole,  if  you  choose-,  or,  l>efore  tin- 
Convention  ;  but  I  shall  oppose  the  referring  back  to  the  Comr 

Mr.  Dickinson,  of  Day:  There  is  one  thing  that  has  n< 
directly  touched  upon,  and  that  is  the  most  important.  The  finan- 
cial part  is  something  that  has  to  be  carefully  drawn,  and  espec- 
ially if  we  propose  to  refund  out  indebtedness,  it  is  better  to  take 
the  advice  of  men  who  are  dealing  in  bonds,  and  to  have  the-  prop- 
osition put  in  such  terms  as  in  the  judgment  of  such  men,  the  bonds 
can  be  safely  and  easily  negotiated.  Mr.  Hole  says,  that  as  one 
who  has  dealt  extensively  in  bonds,  he  would  not  be  willing  to  take 
these  bonds  in  the  wording  this  matter  is  in  now.  It  seems  to 
me  it  will  be  better  to  refer  this  back,  so  as  to  have  the  wording 
made  so  clear  that  there  will  be  no  question  as  to  the  negotiability 
of  the  bonds.  For  that  reason  I  am  very  much  in  favor  of  re- 
ferring it  back. 

Mr. Willis,  of  Aurora:  Mr.  President ;  I  am  convinced  no "w 
that  we  have  reached  that  point  in  this  discussion— in  this  desul ton- 
discussion — where    I 'am    confident — I    am    confident 
"Question,    question"),    being   unaffected    by    this    little    demon- 
stration around  me — that  this  Convention  is  ready  on  this  point. 
I  sympathize  with  that  Committee  on  this  link-  extra  work  tlu-y 
will  have  to  do,  but  I  sympathize  more  with  this  Cuim-ntio- 
with  the  significance  of  the  results  to  accrue  to  tl  t'  this 

Territory,  and  I  say,  in  this  "rattled"  condition,  we  ..tight  I 
ready  now  t<»  refer  tins  back.  (Cries  0\  "question,  qu, 
question"  I. 

The  President,  pro  u-m:      The  question  is  UJM.II  tin-  motion  to 
refer  back   to   the   Committee.     As   ma: 
that  the  motion  prevail.  88 

The  Chair  is  unable  to  decide. 


524  SOUTH  DAKOTA  DEBATES,   1889 

As  many  as  are  of  the  opinion  that  that  motion  prevail  will 
rise  till  you  be  counted. 

The  vote  stands  30  and  30,  and  the  motion  is  therefore  lost. 

Mr.  Corson,  of  Lawrence:  Mr.  President;  I  move  to  postpone 
further  consideration  of  this  matter  until  two  o'clock  this  afternoon. 

A  Delegate:     I  second  the  motion. 

The  President,  pro  tern:  It  has  been  moved  and  seconded 
that  the  further  consideration  of  this  matter  be  postponed  until 
two  o'clock  this  afternoon. 

Mr.  Wood,  of  Pennington:  Mr.  President;  I  am  going  to 
insist  that  that  motion  do  not  prevail — 

Mr.  Van  Buskirk,  of  Codington:  Mr.  President;  I  rise  to  the 
point  of  order  that  this  question  is  not  debatable. 

The  President,  pro  tern:  The  Chair  will  rule  that  the  question 
in  not  debatable. 

Mr.  Wood,  of  Pennington:  Then  I  simply  advise  the  Conven- 
tion to  vote  it  down. 

The  President,  pro  tern:  The  question  is  upon  the  postpone- 
ment of  the  further  consideration  of  this  matter  until  two  o'clock. 

As  many  as  are  of  the  opinion  that  the  motion  prevail,  say 
aye;  opposed  no. 

The  noes  seem  thave  it. 

(Division  called  for.) 

Those  in  favor  of  the  motion  will  rise  and  stand  to  be  counted. 

Thirty-one  in  favor  of  the  motion  and  twenty -eight  against. 

So  the  motion  prevails. 

Mr.  Sherwood,  of  Clark:  Mr.  President;  I  move  we  take  a 
recess  until  two  o'clock. 

A  Delegate:     I  second  the  motion. 

The  President,  pro  tern:  It  has  been  moved  and  seconded  that 
the  Convention  do  now  take  a  recess  until  two  o'clock. 

As  many  as  are  of  the  opinion  that  the  motion  prevail,  say 
aye ;  opposed,  no. 

The  Chair  is  unable  to  decide.  Those  in  favor  of  the  motion 
will  rise  and  stand  to  be  counted. 

Mr.  Dickinson,  of  Day:  Mr.  Chairman;  if  it  be  proper,  I 
would  like  to  ask  if  there  is  any  business  we  can  transact  before 
two  o'clock? 

The  President,  pro  tern:     A  vote  is  being  taken. 

There  are  37  aves  and  23  noes. 


DEBT  LIMIT 


£.|So  the  motion  carries  and  the  Convention  will  tal. 
until  two  o'clock. 

RECESS. 

Two  o'clock  P.  M. 

The  Convention  re-assembled  with  the  President  in  th, 

Mr.    Caldwell,   of   Minnehaha:     Mr.    President;    1 
unanimous  consent  for  the  introduction  of  a  very  importair 
lution  at  this  time.     I  will  read  it  myself,  because  the  chirogi 
is  a  little  questionable: 

WHEREAS,     There   are   at   present  outstanding   bonds  "t    the 
Territory  of  Dakota,  aggregating  $107,500,  of  whick  $77,500 
rive  per  cent  interest,  and  $30,000  six  per  cent,  interest,  which  are 
payable  at  the  option  of  the  Territory  atter  May  1 ,  1 888  ;  and 

WHEREAS,     The   Territorial   Treasurer   has   power   under   the 
Territorial  law  to  declare  said  option;  and, 

WHEREAS,     It  is  the  judgment  of  said  Treasurer  that  it 
be    possible   under  the   present  favorable   condition    ol 
market  to  refund  said  bonds  at  a  much  lower  rate  of  in' 
therefore,  be  it 

RESOLVED,      By    this  Convention,   that  in   its  judgment,   the 
public  welfare  would  be  subserved  by  such  refunding,  and  r 
hereby    requests   the   Territorial   Treasurer   to   tak- 
toward  such  action;  provided,  however,  that  the  rate  of  i:  I 
Avhich  the   refunding  bonds  shall   bear  shall   not   exceed   foiu 
cent,  per  annum,  and  that  any  premiums  secured  upon  such 
should  inure  to  the  benefit  of  the  general  fund  of  the  Territory. 

The  President  of  the  Convention:     The  gentlemar 
imous  consent  to  consider  the  resolution,  and  the  Ch;i. 
objection. 

Mr.  Caldwell,  of  Minnehaha:       Mr.   President;  I   wil1, 
the  Territorial  Treasurer  feels  some   little   hesitation   i: 
this   option,    under   the    circumstances   that    piv\ail   at 
of  the   division   of  the  Territory,  etc.,  and   th: 
with  his  knowledge  and  advice,  in  order  that  thcr< 
thing  like  a  warrant  to  him  for  declaring  the  option,  and  h« 
he   lias  not  any   question   but   that  he  can   refund 
four  per  cent,   and   that   such   refunding   would   sa\'i    t: 
South  Dakota  at  least  SJ5.000  of  i: 
bond  was  originally  .'1  l»»"d  and  tl 

on  its  face  to  be  the  option  of  the  'IVnv 
might  be  a  question  with  the  bond  pur 
not  the  State  of  South  Dakota  could  <;< 
was  the  province  of  the  Territory  of  D 


526  SOUTH  DAKOTA  DEBATES,  1889 

of  bonds  bearing  this  rate  of  six  per  cent,  might  stand  out  and 
question  the  option  declared  by  the  State  of  South  Dakota. 

A  Delegate:     I  second  it. 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question? 

Mr.  Dickinson,  of  Day:  Mr.  Chairman;  I  have  heard  it  stated 
that  those  bonds  could  be  refunded  at  3  y^  per  cent.,  but  we  ate 
liable  to  have  the  outside  limit  used  instead  of  the  inside — 

(Cries  of  "question,  question"). 

The  President  of  the  Convention:  As  many  as  are  in  favor  of 
the  adoption  of  the  resolution,  say  aye ;  opposed,  no. 

The  ayes  have  it  and  the  resolution  is  adopted. 

The  question  now. before  the  Convention  is  on  the  adoption 
of  the  report  of  the  Committee  on  State  Indebtedness,  to  which  the 
gentleman  from  Moody  moves  an  amendment  that  "500,000" 
be  stricken  out  and  that  "100,000"  be  inserted.  If  I  remember 
right,  that  is  the  condition. 

Mr.  Jolley,  of  Clay:  Mr.  President;  the  gentleman  from 
Codington  has  an  amendment  striking  out  "100,000"  and  in- 
serting "200,000". 

The  President  of  the  Convention:  Is  the  Convention  ready 
for  the  question  on  the  striking  out  of  the  "500,000",  as  it  occurs 
in  the  original  report  of  the  Committee  on  State  Indebtedness, 
and  inserting  the  larger  sum,  "200,000"? 

Mr.  Neill,  of  Grant:  Mr.  President;  if  I  understand  the  sit- 
uation of  the  question,  we  have  just  one  amendment  to  the  original 
motion. 

The  President  of  the  Convention:     Two. 

Mr.  Caldwell,  of  Minnehaha:  I  believe  the  other  was  declared 
out  of  order. 

Mr.  Williams,  of  Bon  Homme:  The  amendment  by  the  gentle- 
man from  Codington  county  was  declared  out  of  order,  so  that 
when  we  took  a  recess  the  question  was  on  the  amendment  of  the 
gentleman  from  Moody  county,  to  insert  "100,000"  instead  of 
"500,000". 

The  President  of  the  Convention:  I  understand  the  condition 
of  things  as  the  gentleman  from  Clay  stated — that  the  gentleman 
from  Codington  offered  an  amendment  or  a  substitute,  changing 
the  whole  provision  and  providing  that  certain  bonds  should  be 
taken  up  and  new  bonds  issued;  that  someone  raised  a  point  o 


REFUNDING  BONDS  527 


order  and  that  the  Chair  decided  the  point  of  order  well  taken  ;  ami 
then,  as  I  understood  it,  the  gentleman  from  Codington  offere-1  a 
new  amendment  to  strike  out  the  words  or  the  figures  "500,000" 
and  insert  the  figures  "200,000". 

Mr.  Neill,  of  Grant:     I  understood  that  there  was  only 
amendment  before  the  house. 

The  President  of  the  Convention:     If  the  Clerk  will  read  the 
Journal — 

Mr.  Peck,  of  Hamlin:     Mr.  President:      I— 

Mr.  Neill,  of  Grant:     Mr.  President,  if  there  is  a  second  am. 
ment  before  the  house,  I  have  nothing  to  offer. 

The  President  of  the  Convention:     The  Clerk  tolls  me  that 
the  Journal  is  not  in  the  room.     I  rule  this,  in  the  absence  of  the 
Journal — which  should  be  here,  Mr.  Clerk,  at  all  times  when  the 
Convention  is  in  session — and  upon  the  statement  of  the  tv 
man  who  presided  in  the  Convention  at  the  time,  Mr.  Williams, 
that  the  order  was  as  he  states  it  and  that  there  is  but  t: 
amendment  before  the  Convention. 

Mr.  Neill,  of  Grant:     I  wish,  Mr.  President,  to  offer  t! 
substitute : 

SEC.  3.     That  the  indebtedness  of  the  State  of  South  I) 
limited  by  Section  2,  of  this  Article,  shall  be  in  addition  to  th> 
of  the  Territory  of  Dakota  assumed  by  and  agreed  to  be  paid  by 
South    Dakota;    provided,    that    SS350,000    of    said    imK-bv 
limited  by  Section  2  be  part  of  said  Territorial  indebtedness  until 
the  same  is  fully  paid. 

Mr.  Jolle'y,  of  Clay:     Does   that   relate   to    the  same    - 
matter,  Mr.  President? 

The  President  of  the  Convention.     I    think    it    is  of  t; 
order  as  that  passed  upon  by  Judge    Williams   before   dinner.     It 
was  then  ruled  out  of  order  and   1  am  not  <lis; 
ruling  of  the  chair. 

The    question   is   upon    the    n 

"500,000"  and  insert  "100,000".     All   th.-sr  of   the  > 
the  motion  prevail,  say  aye;  those  opposed,  n<>. 

The  ayes  appear  to  have  it.     The  a\  vs  ha 
(Division  called  for). 

All  those  in  favor  of  the  motion   that    '  5i)i),000"  be  s1 
out  and  "100,000"  inserted,  will  rise  ami  stand  t"  ; 

The  ayes  are  42  ami  t :  '  -^ 

So  the  motion  ptv  . 


528  SOUTH  DAKOTA  DEBATES,  1889 

The  question  now  recurs  upon  the  adoption  of  the  report  of 
the  Committee,  as  amended. 

Mr.  Neill,  of  Grant:  Mr.  Chairman;  I  wish  to  present  the 
amendment  I  offered  before.  I  think  it  is  in  order  now,  and  I 
will  move  its  adoption. 

SEC.  3.  That  the  indebtedness  of  the  State  of  South  Dakota, 
limited  by  Section  2,  of  this  Article,  shall  be  in  addition  io  the  debt 
of  the  Territory  of  Dakota  assumed  by  and  agreed  to  be  paid  by 
South  Dakota;  provided,  that  $350,000  of  said  indebtedness  limited 
by  Section  2  be  part  of  said  Territorial  indebtedness  until  the  same 
is'fully  paid. 

Mr.  President,  I  just  wish  to  explain  the  intent  of  that  amend- 
ment. The  effect  of  this  amendment  will  be  to  make  the  limit 
$150,000.  The  amendment  of  the  gentleman  from  Moody  makes 
the  limit  $100,000.  So  far  as  that  is  concerned,  I  care  nothing 
about  that;  but  the  point  I  wish  to  preserve  is  this — I  don't  wisrf 
to  attack  that  limiting  clause  of  the  Constitution  of  1885,  making 
the  limit  $500,000.  To  save  attacking  that  provision  of  the  Con- 
stitution of  1885,  I  make  this  provision,  by  authority  of  the  Omni- 
bus Bill  in  regulating  the  Territorial  indebtedness,  and  simply 
reserve  $350,000  out  of  that  $500,000,  to  apply  on  this  Territorial 
indebtedness,  and  it  is  to  apply  on  it  continuously  until  all  that 
Territorial  indebtedness  is  paid.  So  that  there  is  no  chance  of 
exceeding  this  $150,000  limit  at  all  until  that  Territorial  indebted- 
ness is  cleared  off.  Then  of  course  the  $500,000  limit  will  be  in 
force  and  will  maintain  the  integrity  of  the  Constitution  of  1885. 
Our  people  are  economical  enough  to  take  fifteen  or  twenty  years 
before  that  $500,000  clause  will  come  into  effect.  They  will 
pay  off  that  debt,  and  they  are  perfectly  safe  to  trust  in  the  future 
not  to  incur  more  of  that  $500,000  than  is  necessary.  It  obviates 
the  difficulty  found  in  that  provision  of  the  Constitution  of  1885. 
(  Mr.  Humphrey,  of  Faulk:  What  part  of  $100,000  is  $350,000? 
That  has  been  changed  now  by  the  adoption  of  the  amendment, 
from  $500,000  to  $100,000.  How  do  you  amend  it  by  your  reso- 
lution? 

Mr.  Neill,  of  Grant:  Coming  in  as  a  substitute  to  the  amend- 
ment. 

Mr.  Van  Buskirk,  of  Codington:  Mr.  President;  I  would  like 
to  inquire — 

The  President  of  the  Convention:  (Not  observing  Mr.  Van 
Buskirk). 


DEBT  LIMIT  529 


As  many  as  are  in  fav.,r  of  the  adoption  i.f  the  amendment, 
will  say  aye — 

Mr.  Van  Buskirk,  of  Codington:     One-  moment,  Mr.  President. 
I  just  came  in,  and  have  not  heard  the  resolution. 

Mr.  Xeill's  amendment  \vas  read  by  the  Clerk. 

Mr.  Jolley,  of  Clay:     Mr.   President;  we  cvrtainly  can': 
that  amendment.      It  is  Section  3,  I  think,  in  the  n-]...rt. 
Section  2  is  amended  so  that  $100,000  is  all  that  is  put  in 
instead  of  $500,000.     The  amendment  says  that  $350,00(1  , 
$100,000  shall  be,  so  and  so! 

The  President  of  the  Convention:  As  many  as  are  ir. 
of  the  adoption  of  the  amendment,  will  say  aye.  (No  <!< 
voted  in  the  affirmative.)  Those  opposed  say  no.  (The  del 
voted  unanimously  against  the  adoption  of  the  amend: 
(Great  laughter). 

The  motion  is  lost! 

The  question  now  recurs  upon  the  adoption  of  the  report  of 
the  Committee. 

Mr.  Xeill,  of  Grant:     I  would  like  to  hear  the  report  read  now. 
Mr.  President. 

The   President  of  the  Convention:     The  Clerk  will   read  tin- 
re  port. 

(The  Clerk  announced  that  the  report  had  been  taken 
Committee  from  his  desk.) 

Mr.    Van    Buskirk,    of    Codington:     Then,    Mr.     • 
would  offer  as  a  substitute,  to  strike  out  Seniors  2  an 
report  of  the   Committee  and   substitute   in    pla>  • 
sections  the  following: 

For    the    purpose    of    defraying    extraordma: 
making  public  improvements,  or  t.,  meet  causal  d 
in  revenue,  the  State  may  contract   debts,  never  ;  In   the 

aggregate,    live    hundred     thousand    dollars,    exclusive    of    tin-    in- 
debtedness to  be  assumed  by   the  Stale  of  South  Dakota  upon  the 
division  of  the  Territory  of  Dakota,  and  n<>  greater  i; 
shall    be    incurred    except    for    the    purpose    of    repelling   in\. 
suppressing    insurrection    or    defending    the    State    or    ; 
States  in  war;  and  provision  shall  be  made  by  law  for  ti :• 
of  the  interest  annually  and  the  principal  when  di:< 
for  the  purpose,  or  from  other  sour.  :uie;  which  lav. 

viding    for    the    payment    of    such    interest    and    principal    \>\ 
tax  or  otherwise  shall  be  irrej-  h  debt   i*- 

vided,  that  until  tin-  present  d< 


530  SOUTH  DAKOTA  DEBATES,  1889 

the  division  of  North  and  South  Dakota,  shall  have  been  paid, 
South  Dakota  shall  not  incur  any  indebtedness  in  excess  of  the  sum 
of  one  hundred  and  fifty  thousand  dollars,  but  the  Legislature 
may  refund  the  indebtedness  assumed  and  to  be  paid  by  South 
Dakota  upon  such  division,  and  may  use  any  part  of  the  said  sum  of 
five  hundred  thousand  dollars  in  excess  of  the  said  sum  of  one 
hundred  and  fifty  thousand  dollars  to  refund  said  indebtedness, 
and  for  no  other  purpose,  but  such  refunding  shall  not  be  deemed 
a  payment  of  such  present  indebtedness. 

The  idea  of  this  is,  as  you  will  readily  see,  that  in  no  event 
can  the  State  of  South  Dakota  become  indebted  over  and  above 
the  debt  which  we  have  to  assume  under  the  Omnibus  Bill,  $150,- 
000  added.  That  is  the  extent  to  which  it  can  go,  by  any  possibility . 
This  provision  allows  the  State  to  refund  that  debt  and  to  use  the 
sum  of  $350,000  of  the  $500,000  to  refund,  but  as  long  as  you  simply 
change  one  obligation  for  another  that  is  not  payment,  and  it  con- 
fers upon  the  Legislature  power  to  refund,  at  a  less  rate  of  interest, 
if  possbile ;  and  I  offer  that  as  a  substitute  for  the  report  of  the 
Committee. 

The  President  of  the  Convention:  You  have  heard  the  sub- 
stitute as  offered.  As  many  as  are  in  favor  of  the  substitute- 
Mr.  Cal dwell,  of  Minnehaha:  Mr.  President;  it  appears  to 
me  that  this  substitute  settles  a  great  many  difficulties  that  have 
occurred  to  the  members  of  the  Convention.  It  seems  to  me  to 
meet  the  emergency,  as  it  provides  for  something  which  the  report 
does  not  provide  for.  I  have  just  been  talking  with  the  Ter- 
ritorial Treasurer,  and  he  says  that  is  a  matter  which  he  feels  is 
of  wonderful  importance,  and  if  this  provides  for  these  difficulties, 
it  is  an  excellent  thing.  I  will  call"  for  the  reading  of  this  sub- 
stitute again.  I  would  like  to  have  it  read  slower,  so  that  we  can 
take  it  all  in. 

The  President  of  the  Convention:     The  Clerk  will  read  it. 
(The  substitute  of  Mr.  Van  Buskirk  was  read  by  the  Clerk.) 
Mr.  Jolley,  of  Clay:     Mr.  President;  I  have  just  been  informed 
by   the  Territorial  Treasurer  that  $150,000 -will  not  be  sufficient 
to  carry  us  until  February,  and  $350,000  will  not  be  enough  to 
amount  to  anything  in  the   refunding,  and  his  idea  is  that  the 
$100,000  ought  to  be  raised  to  $250,000  and  the  $350,000  lowered 
to  $250,000. 

Mr.  Wood,  of  Pennington:  Mr.  President;  I  am  opposed  to 
giving  this  State  the  right  to  contract  that  much  indebtedness 


DEBT  LIMT  531 


over  what  we  assume.     There  is  no  necessity  for  it,  and  I  know 
by  past  experiences  that  the  tendency  is  to  run  up  as  far  B 
can  go.     Of  course  as  soon  as  the  present  debt  is  paid  off  they  can 
run  it  up  to  half-a-million .     There  is  a  constant  teni: 
all  sorts  of  schemes,  for  appropriations  and  the  like,  and 
that  indebtedness  as  low  as  we  can. 

The  President  of  the  Convention:     As  many  as  are  in  f;t 
the  adoption  of  the  substitute,  will  say  aye;  those  opposed,  no. 

The  noes  appear  to  have  it.  The  noes  have  it  and  the  sub- 
stitute is  lost. 

The  question  now  recurs  upon  the  adoption tof  the  re: 
the  Committee,  as  amended. 

As  many  as  are  of  the  opinion  that  the  report  be  adopted,  say 
aye ;  those  opposed,  no. 

The  ayes  have  it  and  the  report  of  the  Committee,  as  amended, 
is  adopted. 

Mr.  Wood,  of  Pennington:  Mr.  President;  I  move  that  the 
action  of  the  Convention  in  adopting  the  report  of  the  Committee, 
be  reconsidered  and  that  the  motion  be  laid  upon  the  table. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:     It  has  been  moved  that  the 
action  of  the  Convention  in  adopting  the  report  of  the  Comr. 
as  amended,  be  reconsidered  and  that  the  motion  to  rec<>; 
be  laid  upon  the  table.      Is  the  Convention  ready  for  the  quc 

As  many  as  are  of  opinion  that  the  motion  prevail,  sa 
those  opposed,  no. 

The  ayes  appear  to  have  it.     The  ayes  have  it. 

(Division  called  for). 

Those  of  the  opinion  that  the-  motion  be  tabled  ri- 
to  be  counted. 

Those  of  a  contrary  opinion,  rise  and  stand  to  be  e«»u: 

The  ayes  are  30  and  the  noes  2  7 . 

So  the  motion  prevails. 

What  is  the  further  ]  ntion'     I  \\-n\\' 

for  the   information    of   tin-   Convention,   that   \\v   have  n«»\v  i 
an  hour,  if  we  accept   the  imitation  of  the   Burlington   I 
to  Spirit  Lake. 

I  am  not  advised  as  to  whether  this  completes  the  Constitu- 
tion, so  that  it  can  vjo  into  the  hands  of  the  enrollu 

Mr.  Caldv.ell.  Of   Minnehaha:      Mr.    President;   I    would  ask  if 


532  SOUTH  DAKOTA  DEBATES,  1889 

the  Article  reported  by  the  Commission  has  not  been  turned  over 
to  the  Enrolling  Committee? 

Mr.  Hartley,  of  Hand:     I  think  not. 

The  President  of  the  Convention:  I  am  informed  by  the  Clerk 
of  the  Convention  that  it  has  been. 

What  is  the  further  pleasure  of  the  Convention? 

Mr.  Humphrey, of  Faulk:     Mr.  President;  I  send  up  the  report 
of  the  Committee  on  Printing,  and  I  move  its  adoption. 
(The  report  was  read,  as  follows:) 

Sioux  Falls,  August  3,  1889. 
MR.  PRESIDENT: — 

Your  Committee  on  Printing,  having  had  under  consideration 
the  advisiability  of  printing  blank  certificates  of  indebtedness, 
relative  to  the  expenses  of  this  Convention,  direct  me  to  report, 
recommending  that  this  Convention  do  provide  for  the  printing 
of  one  hundred  and  fifty  (ISO)  blank  Certificates  of  Indebtenness, 
to  comply  in  form  to  Rule  46,  with  the  addition  thereto  in  the 
beginning  of  said  for  the  words,  "This  is  to  certify".  All  of  which 
is  respectfully  submitted. 

H.  A.  Humphrey, 
Chairman  of  Committee. 

The  President  of  the  Convention:  The  gentleman  from 
Faulk  moves  the  adoption  of  the  report  of  the  Committee  on 
Printing. 

As  ma-ny  as  are  in  favor  of  the  adoption  of  the  report,  will  say 
aye ;  those  of  a  contrary  opinion,  say  no.  The  noes  appear  to  have 
it;  the  ayes  have  it  and  the  report  is  adopted. 

A  Delegate:  Mr.  President;  I  move  we  adjourn  until  two 
o'  lock  next  Monday. 

Mr.  Corson,  of  Lawrence:  Mr.  President;  it  seems  to  me  we 
could  adjourn  to  an  hour  earlier  than  two  -o'clock.  Many  of  us 
wish  to  get  away  on  the  evening  train  and  an  adjournment  until 
that  hour  may  prevent  the  final  adjournment  until  the  next  day. 

The  President  of  the  Convention:  I  will  say,  for  the  informa- 
tion of  the  Convention,  that  Mr.  Brown  informed  us  here,  probably 
before  you  all  came  in,  that  those  wrho  went  to  Spirit  Lake  could 
not  be  back  here  until  11:30  o'clock  in  the  forenoon. 

.Mr.  Hole,  of  Beadle:  I  suggest  that  we  adjourn  until  one 
o'clock,  and  I  make  that  as  a  motion. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  Convention  do  now  adjourn  until  one  o'clock  Monday  afternoon. 


ADJOURNED  533 


As  many  as  are  of  opinion  that  the  motion  prevail,  sa 
opposed,  no. 

The  ayes  have  it  and  the  Convention  stands  adjourned  until 
Monday  afternoon  next,  at  one  o'clock. 
ADJOURNED. 


THIRTY-THIRD  DAY. 

Monday,  August  5th,  1889. 

The  Convention  re-assembled  at  one  o'clock  P.  M.,  with 
President  Edgerton  in  the  chair. 

Prayer  by  Rev.  S.  F.  Huntley,  a  member  of  the  Convention: 

Infinite  Father,  we  recognize  Thee  as  the  source  of  all  wisdom 
and  of  all  power,  and  we  look  unto  thee  as  we  are  now  assembled 
for  the  last  time  in  this  Convention,  for  Thy  benediction   : 
upon  us. 

We  pray  Thee  that  Thou  wilt  guide,  that  this  work  now  U-ing 
accomplished  shall  go  unto  the  people  of  this  State,  meeting  their 
approval,  laying  the  foundations  of  the  prospective  State  and  under 
the  smile  and  approval  of  Heaven. 

Bless  us,  each  and  everyone,  as  we  go  to  our  homes.      1' 
us  in  the  labor  Thou  callest  us  to  do.     Direct  our  minds  ami  our 
hearts  and  let  Thy  blessings  rest  upon  our  homes  and  upon  all  the 
homes  here  represented — all  the  homes  of  our  State. 
perity.     Give  that  peace  and  happiness  which  comes  from  trust- 
ing in  God.     Let  Thy  blessing  rest  upon  all   the  departmc- 
government.     Give  energy  and  strength.     Help  us  in  th« 
of  every  dutv. 

And  when  we  shall  have  accomplished  the  duties  of  : 
ended  our  days  of  probation,  receive  us  to  Thyself,  u 

We  ask  it  in  the  name  of  Christ   Jesus,  our  Redeemer. 
AMEN. 

Mr.  Price,  of  Hyde  called  to  the  chair. 

Mr.    Edgerton,    of    Davismi:      Mr.    President;    wh: 
say  that  1  have  any  apprehension  that  our  b<  >nds  eannot  ' 
into  new  bonds  without  affecting  that  provision  of  Siou.ouo  limita- 
tion, there  are  some  men  who  fear  that  the  otVuvrs  ^'ho  shall 
tiate  the  bonds  will  have  some  apprehension  that  ••• 
tlu    Constitution,  and  for  the  purpose  of  obviating  tin 
of  objection  under  that,  I  ask  unanimous  consent  to  int: 
as  an  additional   provision;  and  the  enrolling  Clerk   has  said  that 


536  SOUTH  DAKOTA  DEBATES,  1889 

putting  this  on  will  not  delay  the  completion  of  the  work  fifteen 
minutes. 

The  President,  pro  tern:     The  Clerk  will  read  the  resolution. 

The  resolution  was  read  as  follows: 

In  order  to  facilitate  action  in  accordance  with  resolution 
adopted  August  3d,  1889,  I  ask  unanimous  consent  to  offer  the 
following: 

SECTION  8.  The  Territorial  Treasurer  is  hereby  authorized 
and  empowered  to  issue  refunding  bonds  to  the  amount  of  $107,- 
500.00,  bearing  interest  not  to  exceed  the  rate  of  four  per  cent,  per 
annum,  for  the  purpose  of  refunding  the  following  described  in- 
debtedness of  the  Territory  of  Dakota,  to-wit: 

$77,500.00  five  per  cent,  bonds,  dated  May  1st,  1883.,  issued 
for  the  construction  of  the  west  wing  of  the  Insane  Hospital  at 
Yankton  and  $30,000.00  six  per  cent,  bonds,  dated  May  1st,  1883, 
issued  for  permanent  improvements  of  Dakota  Penitentiary  at 
Sioux  Falls,  such  refunding  bonds,  if  issued,  to  run  for  not  more 
than  twenty  years,  and  shall  be  executed  by  the  Governor  and 
Treasurer  of  the  Territory,  and  shall  be  attested  by  the  Secre- 
tary under  the  great  seal  of  the  Territory. 

In  case  such  bonds  are  issued  by  the  Territorial  Treasurer  as 
hereinbefore  set  forth,  before  the  first  day  of  October,  1889,  then 
upon  admission  of  South  Dakota  as  a  State  it  shall  assume  and 
pay  said  bonds  in  lieu  of  the  aforesaid  Territorial  indebtedness. 

Mr.  Edgerton,  of  Davison:  Mr.  President;  I  move  the  adop- 
tion of  the  resolution. 

A  Delegate:     I  second  the  motion. 

The  President,  pro  tern:  Gentlemen  of  the  Convention,  it 
is  moved  that  the  resolution  just  read  be  adopted.  Those  who  are 
of  the  opinion  that  the  resolution  be  adopted,  say  aye  ;  contrary,  say 
no.  The  ayes  have  it  and  the  motion  prevails. 

The  President  resumed  the  chair. 

The  President  of  the  Convention:     Reading  of  the  Journal. 

Mr.  Price,  of  Hyde:  Mr.  President;  I  move  that  the  reading 
of  the  Journal  be  dispensed  with. 

The  President  of  the  Convention:  In  the  absence  of  objec- 
tion, it  will  be  so  ordered. 

Mr.  Price,  of  Hyde:  Mr.  President;  I  have  here  a  resolution 
which  I  ask  the  unanimous  consent  of  this  Convention  to  intro- 
duce at  this  time,  and,  as  it  is  a  matter  in  which  the  President  of 
this  Convention  may  have  some  delicacy  in  putting  the  question 
to  the  Convention,  I  will  put  it  myself: 

RESOLVED,     That   for  the   conspicuously   able   and  impartial 


EDGERTON  COMPLIMKNTEII 


manner  in   which   he   has  preside.!   over   the   de!ib< -rations  ,,f   this 
Constitutional   Convention   and   for   his   uniformly    hon 
courteous  treatment  of  the   members  and   ortuci  :ng  lt 

the  Hon.  A.  J.  Edgerton  has  the  sincere  thanks  of  this  Convention; 
that  the  conspicuous  part  borne  bv  him  in  securing  th,-  admi 
of  South  Dakota  into  the  Union  of  States  and  the  invaluabfc 
vices  rendered  by  him  in  framing  the  fundamental  law  of  th 
State,   has  inseparably   linked   his   name    with   the   hist 
new  commonwealth  of  South  Dakota,  and  as  a  testimonial 
regard  for  him,  he  is  hereby   presented   with  the  gavel   wh; 
has   wielded   with   such   dignity   and   fairness   during   the   H 
of  this  Convention,  and  we  cherish  the  hope  that  he  ma 
years  to  enjoy   the  rights  and  privileges  of  a  citi/en 'of  t! 
State  of  South  Dakota. 

Mr.  Clough,  of  Codington:     I  move  its  adoption. 

Chorus  of  Delegates:     "Second  the  motion — second  tt 
lution". 

Mr.  Price  of  Hyde:  It  is  moved  and  supported  gen' 
that  the  resolution  just  read  be  adopted.  All  those  in  fa 
the  adoption  of  the  resolution  will  rise. 

Mr.  Price,  of  Hyde:     It  is  unanimously  adopted. 

The  President  of  the  Convention:     I  cannot  ex; 
delegates    of    this    Convention    upon    the    present  n,    the 

profound  gratitude  that  I  feel  at  this  renewed  expression  of  the 
members  of  this  Constitutional  Convention,  for  my  effort  on  ' 
of  South  Dakota. 

If  anything  has  been  accomplished,  gentlemen,   to  merit  the 
approbation  of  the  people,  it  is  due  to  you,  more  than  to  r 
do  believe  that  we  can  present  to  the  people  of  South  Dakota 
we  go  home,  the  best  Constitution  that  was  ever  subm:1.  • 
people.      I  believe  that  they  will  In-  satisfied  with  our  \v..rk. 
every  single  particular,  from  the   Preamble  to  the 
of  the  Schedule,  the  rights  and  inter,  sts  of  the  p. 
sacredly   guarded.     We   have   guarded   their  school   tu: 
in  the  years  to  come  that  mos;  :.t  fur.d  will  edi; 

poor  man's  child,    throughout    tin-    length   and   !>:> 
Dakota.      \\V    have    guarded    :  ature 

cannot  encroach  upon  them,  aid  it  lias  : 
every    member   of    the    Const  i1 

Constitution   that   the   poorest   man  in   the   commonwealth   v 
equal    to   the   ricbesl 
the  Courts  is  c<  I 


538  SOUTH  DAKOTA  DEBATES,  1889 

in  the  least,  in  the  presentation  to  the  people  of  this  common- 
wealth of  this  organic  law,  I  am  grateful  for  it. 

I  shall  long  remember — as  long  as  I  live— this  Constitutional 
Convention.  While  sometimes  we  have  had  closely  contested 
questions,  while  issues  may  have  been  well  denned,  the  members 
of  this  Convention  have  been  so  far  removed  from  those  passions 
that  sometimes  actuate  bodies  of  this  kind  that  after  the  issue  has 
been  settled  things  have  proceeded  in  an  orderly  and  intelligent 
manner,  without  leaving,  so  far  as  has  been  apparent,  and  so  far 
as  I  believe,  any  rancor  in  the  breast  of  any  man. 

I  thank  you;  I  thank  you  sincerely,  gentlemen,  for  this  ex- 
pression of  your  confidence.  (Great  applause.) 

I  would  say  to  the  members  of  the  Convention  that  unless  it 
is  otherwise  ordered,  I  shall  in  a  short  time  direct  the  Clerk  to 
read  the  Constitution ;  that  is,  by  the  titles  of  separate  articles 
simply,  and  then  ask  that  a  vote  of  the  ayes  and  noes  be  taken 
upon  its  final  adoption.  After  that  has  been  done,  we  will  sign  it 
in  the  order  the  roll  will  be  called,  the  members  coming  forward,  as 
their  names  are  called,  to  the  Clerk's  desk,  and  signing  the  Con- 
stitution. I  say,  unless  it  is  otherwise  ordered  by  the  Convention, 
that  will  be  considered  by  me  as  the  will  of  the  Convention.  It 
may  take  half-an-hour  to  complete  the  enrolling  of  the  Consti- 
tution. If  there  is  any  other  business  before  the  Convention, 
now  is  the  time  to  bring  it  up. 

Mr.  Da  vies,  of  Edmunds:  Mr.  Chairman ;  I  will  make  a  report 
on  behalf  of  the  Committee  appointed  to  secure  the  publication 
and  distribution  of  the  Constitution,  and  will  state  that  the  Com- 
mittee has  been  at  work  as  expeditiously  as  circumstances  would 
warrant,  and  that  the  work  will  be  pushed  to  completion  as  fast 
as  the  circumstances  will  permit. 

The  President  of  the  Convention:  .Possibly  someone  in  the 
Convention  may  be  able  to  give  the  delegates  some  information 
with  reference  to  a  very  important  question — settlement  of  our 
accounts  with  the  Secretary. 

Mr.  Huntley,  of  Jerauld:  Mr.  President;  by  arrangement, 
the  Secretary  is  to  be  here  this  afternoon,  in  the  room  adjoining, 
where  he  will  meet  with  the  members  and  settle  their  accounts. 

In  regard  to  the  amount  of  money  in  the  "treasury",  the  Com- 
mittee is  not  informed  fully  with  regard  to  the  expenses  that  have 
been  made,  but  covering  all  other  matters,  by  the  reckoning  of 


OFFICERS  THANKED  539 


the  Committee,  and  lumping  the  incidental  expenses  at  $1000., 
there  is  $18,821.20  to  come  out  of  the  Congressional  appropriation. 
This  does  not  include  the  expense  for  clerks,  and  othrr  n 
not  mentioned  in  the  Omnibus  Bill. 

The  President  of  the  Convention:     What  is  the  further  j. 
of  the  Convention? 

Mr.  Hole,  of  Beadle:     Mr.  Presdent;    it   has  been,    I    think, 
universally  conceded  that  there  was  an  omission  in  S 
the  report  of  the  Committee  on  Public  Indebtedness,  and  I  ask 
unanimous  consent  to  have  a  provision  added.     The  repor 
vides  that  the  debt  shall  be  $100,000,  but  it  makes  no  pr«  • 
for  funding  the  Territorial  indebtedness;  and  I  would  ask  unan- 
imous consent  to  add  this,  at  the  end  of  Section  2. 

"Provided,  however;  the  state  of  South  Dakota  shall  have  the 
power  to  refund  the  Territorial  debt  by  the  State  of  South  D 
assumed,  in  bonds  of  the  state  of   South  Dakota." 

Of  course  if  there  is  an  objection  to  this,  it  falls.  It  seems  to 
be  absolutely  necessary  to  put  it  there,  in  order  to  give  us  power 
to  fund  the  debt  as  it  matures. 

The  President  of  the  Convention:     Is  there  any  objection? 

Is  the  Convention  ready  for  the  question? 

As  many  as  are  in  favor  of  its  adoption,  will  say  Aye;  those  of 
a  contrary  opinion,  will  say  no. 

The  ayes  have  it  and  the  resolution  is  adopted. 

Mr.  Price,  of  Hyde:     Mr.  President;  I  have  a  resolution 
I  send  up  and  ask  that  it  be  read. 

The  resolution  was  read  as  follows: 

"Resolved,  That  the    thanks  of    this    Convention 
tendered  to  Rev.  F.  A.  Burick,  Chief  Clerk;  Dr.  A.  W.     1 
rolling  and  Engrossing  Clerk;  J.  A  Wakefield,  Chaplain;  J 
ney,  Sergeant-at-Arms;  E.  C.  Warner,  Watchman:  F.  Hi'ppir. 
senger;  Col.  I.  W.  Goodncr  and    T.(i.    Brown.   Strno^ra; 
Albert  Keith,  Charley  Walts  and  Frank  Clougl: 
ful  and  able  manner  in  which  they  have  disrhari;rd  the  «lut 
their  respective  positions." 

Mr.  Price,  of  Hyde;     Mr.  Pn-sident.    I    n 
the  resolution. 

A  Delegate:     I  second  tin-  motion. 

The  President  of  tlu-  C«m\vnti..n:     You  < . 
Arc  you  rradv  fur  tin-  (|iu-sti«>n  r 

As  many  as  are  in   favor  i.f  h 
opposed,  no. 


540  SOUTH  DAKOTA  DEBATES,  1889 

The  ayes  have  it  and  the  resolution  is  adopted. 

Mr.  Young,  of  Lake:  Mr.  Chairman ;  I  have  a  resolution  which 
I  send  to  the  Clerk's  desk  to  be  read. 

The  resolution,  which  provides  for  the  allowance  of  mileage  to 
certain  clerks  and  the  watchman  and  messenger,  was  read  by  the 
Clerk,  but,  on  account  of  some  slight  confusion  in  the  hall,  the 
reading  was  inaudible  to  the  reporter. 

The  President  of  the  Convention:  Is  that  to  come  from  the 
United  States,  or  the  State  ? 

Mr.  Young,  of  Lake:     From  the  State. 

The  President  of  the  Convention:  If  it  comes  from  the  State, 
our  rules  provide  just  how  to  reach  it.  The  rules  provide  that  all 
such  accounts  must  be  presented  to  the  Committee  on  Expenses 
and  be  by  that  Committee  audited  and  then  go  to  the  Convention. 
If  it  is  desirable,  however,  I  will  put  the  motion. 

As  many  as  are  of  opinion  that  the  motion  prevail,  will  say 
aye,  those  of  a  contrary  opinion,  say  no. 

The  ayes  appear  to  have  it. 

(Division  called  for.) 

The  President  of  the  Convention:  As  many  as  are  of  opinion 
that  the  motion  prevail,  will  rise  and  stand  to  be  counted.  Be 
seated.  As  many  as  are  of  the  contrary  opinion,  will  rise  and 
stand  to  be  counted.  Be  seated. 

The  motion  is  lost. 

Mr.  Caldwell,  of- Minnehaha :  Mr.  President;  I  desire  to  state 
to  the  members  of  the  Convention  that  arrangements  are  being 
made  for  holding  a  reception  in  this  room  this  evening,  by  the 
citizens  of  Sioux  Falls,  to  the  members  of  the  Convention,  officers, 
and  so  forth,  and  their  ladies,  and  a  formal  invitation  will.be  dis- 
tributed sono,  but  I  make  this  announcement  now  in  order  that  if 
any  should  miss  an  invitation,  they  will  understand  that  it  is  ex- 
tended, nevertheless. 

Mr.  Willis,  of  Aorora:  Gentlemen  of  the  Convention,  we 
have  finished  our  work  as  a  .  Constitutional  Convention — as  a 
body — and  we  have  a  matter  now  of  a  personal  nature  that  we 
wish  to  perform  before  we  leave.  Will  Brother  Jolley  please  come 
forward?  It  is  the  unanimous  desire  of  the  Convention  that  Mr. 
Jolley  perform  this  agreeable  work  and  duty  and  pleasure,  in  the 
name  and  on  the  behalf  of  the  Convention. 

Mr.  Jolley,  of  Clay:     Mr.  President;  the  closing  hours  of  this 


JOLLEY'S  FAREWELL  541 


Convention    have    almost    arrivi-,1.      .Nearly     five    week 
assembled  here  in  this  hall,  many   of  us  str, 
and  here  we  have  met  and  worked  together  during  thi 
We  are  just  as  other  men  are  throughout  this  whole  Terntor 
throughout    this    whole    Western    country      men    of    sti 
victions,    decided    opinions,    but    having    charity    fur    I 
differ  from  us.     During  the  heat  and  excitement  that  1  . 
prevailed  here  in  this  Convention,  men  have  stood  by  their  opinions 
as  firmly  as  men  ever  stood;  they   maintained  their  opini"- 
the  logic  of  reason,  by  argument  and  appealing  to  the  symp.. 
of  the  members  of  the  Convention;  but,  during  the  whole  Conven- 
tion, no  matter  how  warm  our  feelings,  no  matter  how  hot  t: 
bate  ran,  there  has  been  no  unkind  word  said.     We  will  have  this 
hall  with  no  unkind  feelings  in  our  breasts.     We  met 
we  part  as  friends.     And  as  the  years  go  by,  when  t  a  that 

have  been  enacted  in  this  chamber  shall  be  brought  1 
memories,  we  will  remember  each  person  who  took  part 
fought  us  the  hardest  we  will  respect  the  most;  those  wi. 
us  we  will  respect  as  men  who  entertained  tin-  same 
ourselves;  but,  one  and  all.  of  both  parties,  look  upon  • 
af  friends,  and  when   we  meet  in   the  future  years,  we   wiK 
perhaps  as  brothers. 

It  is  true,  Sir,  when  this  Convention  met  there'  was  s«>me  feeling 
about  who  should  preside  over  its  deliberations.     We-  all 
office",  in  our  way,  and  he  who  says  that  he  has  no  r  the 

endorsement  of  his  fellow-men,  obtained  in  a  fair  manner,  without 
resorting  to  tricks  or  subterfuge's,  but  in  a   fair,  opt  n   fight 
man   without  heart  of  feelings;  he  is  a   man   that   th 
eountry  knows  not  of.      Hypm-rites  may  rant  and  tl  want 

office  may  smile  their  spurnings  and  sav  "we  don't  wa;  I 
in  man's  heart  of  hearts  there  is  a  satisfaction  in  the  en 
of  our  fellow  eitixens  that  brings  gratification  t<>  <>uv 
to  our  friends.      A  life  well-spent  is  a  ivble  thing,  and  to  ! 
by  one's  friends  is  a  man's  pride.      Coming  here  in  this  r. 
prompted  by  such  feelings  as  th-  se  wlm  i 
who   have    assembled    here,   after   the    little   e!'< 
wiped  away,   when   you.   Sir,   \\vre  • 
eorded    with    tin-   heart  and    the   wi 
Convention:  and    now   while   you   have    w.  >n 


542  SOUTH  DAKOTA  DEBATES,  1889 

yourself  and  credit  to  the  State,  but  Sir,  at  the  close  of  this  Con- 
vention we  cannot  only  say  that  you  have  won  our  respect  and 
our  regard,  but  that  you  have  won  our  hearts,  too. 

Then,  Sir,  in  behalf  of  the  members  of  this  Convention,  I  pre- 
sent to  you  this  protrait  of  each  member  of  this  Convention.  Take 
it  home ;  and  when  you  look  at  the  features  remember  that  each 
is  a  friend;  as  you  look  upon  their  features  remember  that  you  met 
many  of  them  as  strangers,  but  that  so  long  as  life  shall  last,  you 
shall  be,  as  you  are  now,  their  friend.  In  the  heat  of  a  political 
fight  friendships  are  sometimes  wrecked, — friends  are  separated 
who  have  been  linked  together  for  many  years;  but  remember, 
Sir,  that  up  to  this  time  and  for  your  acts  in  this  Convention,  no 
matter,  I  say,  what  may  happen  in  the  future,  you  part  with  us 
now  with  our  respect  and  sincere  wishes  and  earnest  prayers  for 
your  future  health  and  prosperity.  (Great  applause). 

The  President  of  the  Convention:  Surprises  come  thick  and 
fast.  Four  years  ago  I  met  in  this  hall  the  delegates  who  were 
sent  up  from  the  different  constituencies  of  South  Dakota  to  frame 
a  Constitution.  We  met  strangers.  When  I  was  then  selected, 
without  any  solicitation  on  my  part,  to  be  the  presiding  officer  of 
that  Convention,  it  is  with  pride,  perhaps  with  egotism,  that  I 
say  I  received  the  unanimous  vote  of  that  Convention,  Demorcat 
and  Republican  alike.  Four  years  have  succeeded,  and  with  them 
a  battle  and  struggle  such  as  I  have  never  witnessed  in  civil  life 
before,  for  the  division  and  admission  of  Dakota.  We  met  again 
and  by  the  same  vote,  the  unanimous  vote  of  the  Democrats  and 
Republicans  alike,  I  was  selected  as  your  presiding  officer — the 
highest  I  have  ever  filled,  the  highest  office  I  ever  expect  to  fill.  To 
be  a  delegate  in  a  Constitutional  Convention  establishing  the 
fundamental  law  of  the  State  of  South  Dakota,  ought  to  fill  the 
ambition  of  any  reasonable  man's  heart;  to  be  twice  made  the 
presiding  officer  of  such  a  body,  is  an  honor  which  is  greater  than 
that  of  any  other  office  I  ever  have  or  ever  will  be  called  upon  to 
fill.  If  I  have  succeeded  in  doing  my  duty  here  amid  the  active 
struggles  of  the  Convention,  so  as  to  meet  the  approbation  alike 
of  all  men,  I  have  done  more  than  I  expected.  I  only  expected, 
and  I  only  assured  you  when  I  took  that  chair,  that  as  far  as  in 
me  lay,  that  I  would  discharge  these  duties  impartially  and  to  the 
best  of  my  ability.  If  I  have  succeeded  so  that  at  the  closing  hours 
of  this  Convention  you  say  to  me  you  are  satisfied  that  I  have 


MINUTES  OP  JOINT    COM 

endeavored  to  perform  these  duties  w'l,     t  say  it  more  than  fills 
the  measure  of  my  ambition. 

I  thuuk  you!     I  shall  long  remember  the  persons  \vlv--    | 
traits  are  engraved  upon  this  picture.     I  shall  consider  it  t, 
price  and  I  hope  to  transmit  it  to  my  children  with  the  sail.- 
and  Section  for  each  and  every  member  of  this  Convention  that 
I  entertain  for  it.     I  sincerely  thank  you  for  this  renev 
sion  of  your  kindneai  and  affection.     (Great  nj.pl.v 

Mr.  Caldwell  ot  Minnehaha:     Mr.  President:  I  hold  h- 
official  copy  of  the  proceedings  of  the  Joint  Comniis- 
marck,  and  I  suppose  of  course  that  the  proper  thing  will 
include  this  record  with  the  records  of  this  Convention.     I   had 
hoped  that  Major   Kellam,   the   Chairman   of  the   South   I) 
Committee  would  be  here,  but  he  is  not  at  present,  and  I 
on  behalf  of  the  Committee  to  turn  this  over  to  the 
the  Convention. 

The  President  of  the  Convention:     What  will  the  ' 
do  with  the  records  of  the  Joint  Commission. 

Mr.  Wescott,  of  Deuel:     Mr.  Chairman ;  I  move  it  be  de; 
with  the  President  of  the  Convention,  by  him  to  be  deposited  with 
the  Secretary  of  State  upon  the  admission  of  South  Dakota  into 
the  Union. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:     Is  the  Convention 
for  the  question?     You  have  heard  the  motion.     As  many  . 
of  opinion  that  the  motion  prevail,  say  aye;  those  of 
opinion,  say  no. 

The  ayes  have  it. 

So  the  motion  prevails. 

Mr.  Caldwell,  of  Minnehaha:     I  «! 

connection  that  with  these  minutes  there  is  also  inrluded  a 
the  books  at  this  time  in   the  Territorial   library.      \\ 
precaution  to  take  that  list,  in  order  that  then-  might  ; 
tion  arise  as  to  whether  we  got  all  the  books  we  bought,  n. 
any  of  us  felt  any  apprehension  there  would  U-  any  "t  tin- 
taken  away,  but  it  would  certainly   U-   doeunu-ir. 
any  person  who  might  in  the  future  think  any  siu-h  tl 
suppose  this  will  go  over  also  with  that  n 

Mr.  Hole,  of  Beadle:      Mr.   President;]!'  I  ur.'iiT-t.ir.'i  tl 
dition  of  the  business,  it    will   pmbabh 


544  SOUTH  DAKOTA  DEBATES,  1889 

Constitution  now,  as  a  whole,  if  we  have  reached  that  stage,  and 
I  think  we  have. 

The  President  of  the  Convention:  Judge  Corson  can  better 
inform  the  Convention  as  to  that  than  I  can.  It  was  not  ready  a 
few  moments  ago. 

I  will  state  to  the  delegates  that  I  have  asked  the  Clerk  of  the 
Secretary  (of  the  Territory)  if  he  can  come  into  the  Committee 
room  to  settle  with  the  delegates,  and  if  he  can,  it  will  be  more 
convenient  for  you  and  for  him. 

Possibly  someone  can  inform  us  when  the  bound  volume  of 
the  Constitution  will  be  present — about  how  long  before  it  will 
be  ready. 

Mr.  Corson,  of  Lawrence:  It  will  be  here,  Mr.  President,  in 
about  five  minutes. 

The   President  of  the  Convention:     The  Convention  may   be 
informally  at  recess  until  called  to  order  at  the  sound  of  the  gavel. 
RECESS. 

The  Convention  came  to  order  at  4  o'clock  P.  M.,  President 
Edgerton  in  the  Chair. 

The  enrolled  copy  of  the  Constitution  having  been  received 
from  the  Committee,  the  same  was  read  by  the  Clerk,  by  title. 

Mr.  Kellam,  of  Brule:  Mr.  President;  I  offer  the  following 
resolution: 

(Reading)  RESOLVED,  That  the  Constitution  having  been 
considered  and  acted  upon  Article  by  Article,  the  same  be  now 
passed,  adopted  and  confirmed  as  a  whole. 

The  resolution  being  put  to  vote,  and  there  being  72  ayes  and 
no  noes,  the  same  was  declared  adopted. 

Thereupon,  the  roll  being  called,  each  member,  as  his  name 
was  called,  came  forward  and  signed  the  Constitution. 

On  the  motion  of  Mr.  Kellam,  of  Brule,  it  was  ordered  that 
the  four  stars,  representing  the  States  of  North  Dakota,  South 
Dakota,  Montana  and  Washington,  upon  the  walls  of  the  Convention 
hall,  be  left  with  Mr.  Caldwell  to  be  placed  in  the  hall  of  the  future 
State  house. 

A  recess  was  taken  until  4:30  o'clock  P.  M. 
RECESS. 

Four-thirty  o'clock  P.  M. 

Convention  called  to  order  with  President  Edgerton  in  the 
chair. 


Mi 1. 1-:. M;K  OF   MKMHKRS  545 

Mr.  Fellows,  of  Aurora:     Mr.  President;  L  understand  tlu-  dis- 
bursing   officer,    the    rcprcsentathe    of    Secretary     Richardson,    is 
raising  a  question  as  to  the  mileage  of  the  members  of  tli: 
vention.      Now,   the   Committee   on    Kxpenses  of   this  Convention 
have  figured  up  the  mileage  of  all  the  members,  and  that  : 
I  understand  he  is  not  willing  to  accept,  and  now,  to  bring  the  mat- 
ter to  his  attention  in  a  proper  way,  I  move  you  that  the  Chair 
appoint  a  committee  of  three  members  of  this  Convention  to  visit 
the  officer  disbursing  the  funds  and  try  to  get  him  to  accept  the 
report  of  the  Committee. 

A  Delegate:     I  second  the  motion. 

Mr.  Peck,  of  Hamlin:     Make  it  the  action  of  this  Convention, 
and  then  send  it  to  him  by  a  committee  of  three. 

Mr.  Fellows,  of  Aurora:     And  in  that  connection,  Mr 
dent,  I  move  you  that  we  adopt  the  report  of  tin-  Commit' 
Mileage. 

The   President  of  the  Convention:      We   can't  adopt  it   until 
we  have  it  here. 

As  many  as  are  of  opinion  that  the  resolotion  be  adopted, 
say  aye ;  opp  sed,  no. 

T  c  ayes  have  it. 

So  t  e  resolution  is  adopted. 

I  will  appoin'  on  that  Committee,  Mr.  Caldwell,  Mr.  Van  Bus- 
kirk  and  Mr.  Price. 

Mr.  Fellows,  of  Aurora:     Mr.   President  ;   I   think   we   will  Iw 
able  to  report  that  mileage  matter  to  tin-  Convention  in  . 
moments,  and  I  think  the  Convention  ought  to  adopt  it. 

Mr.  Van  Tassel,  of  Sanborn:      Mr.  Chairman;  I  offer  tin-  fol- 
lowing resolution  and  move  its  adoption: 

RESOLVED,     That  the  thanks  of  this  Convention 
to  Assistant  Secretary  llubbard,  for  his  kind  attention  to  the  mem 
bers  of  this  Convention. 

The  President  of  the  Convention:     Well,  he  is  n 
Secretary. 

Mr.  Van  Tassel,  of  Sanborn:          VVell.  repres-  • 
Secretary. 

.  The  President  of  the  Convention:     It  is  moved  thai  tl  i 
of  the  Convent. on  be  extended  to  Mr.  llubbard  • 
and  attention  to  the  members  of  this  Conventioi 


546  SOUTH  DAKOTA  DEBATES,  1889 

vention  convened.  As  many  as  are  of  the  opinion  that  the  motion 
prevail,  say  aye ;  those  of  a  contrary  'opinion,  say  no. 

The  ayes  have  it. 

So  the  resolution  is  adopted. 

Mr.  Anderson,  of  Hand,  called  to  the  chair. 

Mr.  Edgerton,  of  Davison:  Mr.  President;  I  offer  the  follow- 
ing resolution  and  move  its  adoption: 

RESOLVED,  That  the  Committee  authorized  by  the  Conven- 
tion to  publish  the  debates,  secure  the  publication  of  the  same 
at  the  earliest  possible  time  when  the  funds  can  be  secured,  either 
from  the  United  States  or  the  State,  and  that  the  published  de- 
bates be  distributed  the  same  as  the  Journals. 

A  Delegate:     I  second  the  motion. 

The  President,  pro  tern:  The  gentleman  from  Davison  offers 
the  resolution  read  in  your  hearing  and  moves  its  adoption.  Are 
you  ready  for  the  question  ? 

As  many  as  are  in  favor  of  the  motion  will  say  aye  ;  those  op- 
posed, say  no. 

The  motion  prevails  and  the  resolution  is  adopted. 

President  Edgerton  resumed  the  chair. 

Mr.  Van  Tassel,  of  Sanborn:  Mr.  President;  I  move  a  recon- 
sideration of  the  motion  that  when  the  Convention  adjourn  today 
it  adjourn  sine  die. 

The  President  of  the  Convention:  I  presume  this  motion  is 
made  with  the  thought  that  in  case  some  other  obstacle  should 
arise  to  prevent  our  being  paid  today,  we  may  need  to  have  a 
session  tomorrow. 

A  Delegate:     I  second  the  motion,  Mr.  President. 

The  President  of  the  Convention:  As  many  as  are  in  favor 
of  the  motion  will  say  aye ;  those  of  a  contrary  opinion  will  say 
no. 

The  ayes  have  it  and  the  motion  is  reconsidered. 

Mr.  Van  Tassel,  of  Sanborn:  Mr.  President;  I  move  you  that 
the  further  consideration  of  the  motion  pending,  which  is  that 
when  this  Convention  adjourn  it  adjourn  sine  die,  be  postponed 
until  seven  o'clock  this  evening. 

A  Delegate:     I  second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  further  consideration  of  this  motion  be  postponed  until  seven 
o'clock  this  evening.  As  many  as  are  of  the  opinion  that  the 


KM-KXSES  547 


motion  prevail,  will  say  aye;  those  of  a  contrary  opinion,  will  say 
no. 

The  ayes  have  it. 

So  the  motion  prevails. 

Mr.  Price  of  Hyde:  Mr.  President;  I  desire  to  state  that  the 
Committee  appointed  to  confer  with  the  disbursing  officer,  has 
seen  him,  or  a  majority  of  the  Committee  has  seen  him,  and  we 
have  this  to  report: 

ta  That  there  are  some  discrepancies  in  the  amount  .of  mileage 
for  the  delegates,  and  he  is  now  engaged  in  preparing  a  pay-roll 
and  refiguring  the  mileage  of  the  different  members,  and  he  an- 
nounces to  us  that  he  will  not  get  the  pay-roll  ready  before  six 
o'clock,  and  we  have  requested  him  to  compare  that  with  the  one 
prepared  by  the  Expense  Committee,  and  then  check  where  there 
is  any  difference,  and  at  that  time  we  will  go  over  them  with  him. 

Mr.  Van  Eps,  of  Minnehaha:  Mr.  President;  I  move  that 
when  this  Convention  adjourns  until  seven  o'clock  they  meet  in 
the  rooms  below,  in  order  that  the  citizens  may  have  the  oppor- 
tunity to  prepare  this  room  for  the  banquet  this  evening. 

A  Voice:     Second  the  motion. 

The  President  of  the  Convention:  It  has  been  moved  that 
the  Convention  reassemble  this  evening,  when  we  meet  at  seven 
o'clock,  in  the  rooms  below.  Is  the  Convention  ready  for  the 
question? 

As  many  as  are  of  the  opinion  that  the  motion  prevail,  will 
say  aye*  opposed,  no. 

The  ayes  have  it. 

So  the  motion  prevails. 

Mr.  Huntley,  of  Jerauld:  Mr.  President;  your  Committee  on 
Expenses  make  the  following  report: 

It  is  suggested  by  a  member  of  the  Committee  that  we  request 
the  privilege  of  receiving  this  report  again,  that  we-  may  make  a 
correct  copy,  free  from  these  marginal  notations  made  for  the 
benefit  of  members  merely. 

The  President  of  the  Convention:  What  will  the  Convention 
do  with  the  report? 

A  Voice:     Move  it  be  adopted. 

Mr.  Van  Tassel,  of  Sanborn:      1   m«>\v  y..u.  Sir.  that  in  the 
matter  of  C.  A.  Anderson,  Clerk  of  the  Committee  Ml  A 
ment,  the  amount  be  changed  from  SI  10  to  $1JS.      H. 


548  SOUTH  DAKOTA  DEBATES,  1889 

$125  by  the  Secretary — three  days  more  than  is  allowed  by  the 
Committee. 

The  President  of  the  Convention:  If  he  has  been  paid,  why 
is  it  brought  in  here? 

Mr.  Huntley,  of  Jerauld:  Mr.  President;  I  will  say  that  Mr. 
Hubbard  appeared  before  the  Committee  .and  gave  an  explanation. 
It  appears  that  he  paid  some  of  these  clerks  before  he  knew  that 
he  had  not  authority  to  do  so.  He  came  before  the  Committee 
and  asked  that  the  Committee  recommend  to  the  Convention  that 
he  receive  vouchers  for  the  amount  that  he  paid  to  these  men 
and  that  the  balance  be  paid  to  them.  The  Committee  were 
willing  enough  to  make  such  recommendation.  If  it  has  not  been 
inserted  there — if  I  remember  rightly  some  action  %was  taken 
by  the  Committee,  but  it  was  all  done  in  a  hurry  and  it  has  escaped 
the  record,  but  the  Committee  did  recommend  that  Mr.  Hubbard 
receive  vouchers  for  the  amount  that  he  paid,  and  the  memorandum 
of  it  is  in  the  hands  of  the  Committee. 

The  President  of  the  Convention:  The  Committee  report 
$110  in  the  case  of  Mr.  Anderson? 

Mr.  Huntley,  of  Jerauld:  And  that  is  the  amount  that  Mr. 
Hubbard  paid  Mr.  Anderson. 

Mr.  Van  Tassel,  of  Sanborn:  Then  I  withdraw  my  motion. 
I  thought  he  paid  him  $125. 

The  President  of  the  Convention:  Does  the  Committee  recom- 
mend that  these  vouchers  shall  be  paid  to  Mr.  Hubbard? 

Mr.  Huntley,  of  Jerauld:  Yes,  Sir;  vouchers  of  $11*0.  paid  to 
Mr.  Anderson;  and  that  $95.  out  of  the  $140  for  Mr.  Hannett,  and 
$75  out  of  the  $140  for  Mr.  Deitz,'be  paid  to  Mr.  Hubbard,  and  the 
balance  go  to  these  parites. 

The  President  of  the  Convention:  Then  the  recommendation 
of  the  Committee  is  that  those  accounts  be  divided  and  separate 
vouchers  be  issued? 

Mr.  Huntley,  of  Jerauld:  Yes,  Sir;  and  I  would  ask  leave  to 
add  to  our  report  this  bill  handed  in  by  Mr.  Hubbard  for  the  amounts 
he  paid  these  clerks.  We  designed  to  incorporate  it,  but  in  our 
haste  in  writing  it  up  we  omitted  to  do  so. 

The  bill  of  Mr.  Hubbard  referred  to,  was  here  sent  to  the  desk 
and  read. 

The  President  of  the  Convention:     Do  I  understand  the  Com- 


ADJOURNED  SINE  DIE  449 

mittee  to  recommend  that  this  voucher  to  Mr.  Anderson  be  delivered 
to  Mr.  Hubbard? 

Mr.  Huntley,  of  Jerauld:  That  is  the  request,  and  that  the 
amounts  named  in  the  bill  of  Mr.  Hubbard  there — that  these 
vouchers  be  issued  to  go  to  him,  and  the  balance  of  tlu-  amounts 
to  Mr.  Deitz  and  Mr.  Hannett. 

The  President  of  the  Convention:  I  think  it  would  be  a  little 
better,  and  it  would  not  involve  the  two  officers  that  sign  these 
vouchers,  if  the  Committee  themselves  had  recommended  this  in 
their  report. 

Mr.  Huntley,  of  Jerauld:  Motion  was  made  in  the  Committee 
to  do  so,  but  in  writing  up  the  work  after  action  had  been  taken, 
it  was  inadvertently  omitted. 

The  President  of  the  Convention^  Correct  the  inadvertence 
then,  so  that  the  President  of  the  Convention  and  the  Chief  Clerk 
will  have  no  difficulty  in  determining  just  what  the  exact  will 
of  the  Convention  is. 

Those  of  the  opinion  that  the  report  of  the  Committee  be  ad- 
opted, say  aye;  those  of  a  contrary  opinion,  say  no. 

The  ayes  have  it  and  the  report  is  adopted,  with  the  under- 
standing that  the  Chairman  of  the  Committee  may  make  cor- 
rections. 

A  Delegate:  I  move  we  take  a  recess  until  seven  o'clock  this 
evening. 

A  Voice:     I  second  the  motion. 

The  President  of  the  Convention:  It  is  moved  that  the  Con- 
vention take  a  recess  until  seven  o'clock  this  evening.  Those  of 
the  opinion  that  the  motion  prevail,  say  aye;  contrary,  no. 

The  ayes  have  it  and  the  Convention  will  stand  in  recess  until 
seven  o'clock,  when  we  will  meet  in  the  rooms  below. 
RECESS. 

Seven  o'clock,  P.  M. 

The  Convention  was  called  to  order  in  tlu-  luwrr  r«u>ins 

President  Edgt-rton  presiding. 

There  being  no  further  business  before  the  Conventioi 
the  settlement  of  acvmmts  of  members,  a  r«  '^"  untl1 

nine  o'clock. 

RECESS 

Nine  o'clock,  P.  M. 


.550  SOUTH  DAKOTA  DEBATES,  1889 

The    Convention    was   called    to    order,    President    Edgerton, 
presiding. 

On  motion  of  Mr.  Jolley,  of  Clay,  the  Constitutional  Conven- 
tion of  South  Dakota,  adjourned,  sine  die. 
ADJOURNED. 


INDKX 


Absentees 

Additional  Resolution,  Kdireitnn 
Adoptions.  Schedule  Kepoit 
Aniei ican  Sabbath  Union 
Amount    Indebtedne.-s.  EkJgerton, 
Announces  Mr.  .Inlley.  Wiiii- 
Appieeiat  ion  and  'l'i  ibute 
Appropi  iat  ion.  Pi  ice 
Auditor's  Resolution  by  Cluuiih 
Adjourn.  I)avie> 

Fellows 

Han-is 

Hnniplncy  li;{ 

Jolley 

Kiin  ball 

X<-ill 

I'lice 

Sherwood 

Sterling 

Van  Tassel 

Whitlnck 

Williamson 

Willis 

Young 

Stka 

Han  i- 

•• 

Van  liuskirk 
• 

.111  Mcial  Ci:' 
Atkin.-on     I.. 
Conin 


554  SOUTH  DAKOTA  DEBATES,  1889. 


Stenographers    59 

Avery,  H.  M. 

Administration  Oath  of  Office 11 

Australian  Ballot 297,  SCO 

Anderson 331 

Hole    303 

Lee  : 315 

Van  Buskirk  302,313 

Ballot,  Forni  of 4C6 

Banvard,  John,  Seal  of  State    56 

Beadle  County,  Communication  From : 192 

Bonds— 

Kellam    512 

Boucher,  Lymaii  T., 

Religious  Worship 104 

Time  of  Office    485 

Revenue  and  Ominbus  Bill 499 

Boundaries — 

Price 25,32 

Sherwood    25 

Brott,  S.  F.  .. 

Excused    491 

Brown,  Theron  G.,  Stenographer 30 

Brown,  T.  H.   Letter  From      419 

Burdick,  A.  C.,  Rev.  .. 

Elected  Chief  Clerk  ...                                                    17 

Prayer  387 

Caldwell,  E.  W. 

.     Election 473 

Joint  Commission  at  Bismarck 543 

Joint  Commission   450 

Journals    15,36,38,48 

Limitations    503,  504 

Maps  of  Territory   44 

Printing 39 

Proclamation  of  Governor  4 

Reception  to  Convention  by  Sioux  Falls 540 

Resolutions -  535 

School  Lands 97 

Temporary  Chairman  of  Court 7 

Tenure  of  Office  434 

Territorial  Library    543 

Called  to  Chair 

-Price    535 

Williams ? 495 

Campbell,  Hugh  J. 

Privileges  of  Floor  36 


INU  5SS 

Carney.  James 

Sergeant  at  Anns  17 

Chair, 

Bpooner  Galled  70 

Chairman, 

Sterling 

Coats.  Clark  ('.. 

Takes  Oath  

Compact,  With  ['.  S. 
Couchman, 

Called  to  Chair 
Judicial  Circuit    .... 

Capitol  Lands 

Corson  

Dickinson 

Hole 

Humphrey   

Sherwood    

Woods  

Young  

Chaplain. 

1 'rayer  18,28,43,61,61,87,107,111,112,115,151,  • 

Clerk.  Chief. 

Burdick     17 

Engrossing,  Hyde    17 

Constitution  544 

Roll  Call 
Clerk  of  Courts 

Jolley 

Sherwoi  >d 

Sterling 

Van  Huskirk 
Williams 
Wood 

dough.  Kdward  K. 
Enanlinir  Act 
Kxplains 
(MM ilotric  Suney 
Journals 
Oath  of  OHiee 

Prayer 

IW-iMMii.-  !•>•  Coi 
Rule 

Commission.  Joint  . 

Humphrey 

Kellam 

Neil 


556  SOUTH  DAKOTA  DEBATES,  1889. 

Spooner  25 

Wood  24,40 

Communications. 

American  Sabbath  Union  155 

Beadle  County  192 

Conventions  of  Xoith  Dakota  and  Washington  8 

Montana  Convention 29 

North  Dakota    14 

Washingt  on    14 

Committees, 

American  Sabbath  Union 248 

Apportionment    547 

Arrangement  and  Phraseology   3M 

Banking  and  Currency  179 

Bill  of  Rights  131,  134 

Compensation  of  Public  Officers  125 

Conference    8 

Ci ingress  and  Lejrisl-itive  Apportionment    246 

Corporations 12S,  129 

Correction  of  Constitution  ^5 

County  and  Township  Organization ls7 

Education  and  School  Lands 250 

Election  and  Plights  of  Sufirage ' 141.  171.  2 

Executive  and  Adminsitrative 116.  1S1.  is 4 

Exemptions    178 

Federal  Relation 172.  173 

Impeachment  and  Removal    1G6,  107 

Indebtedness     ..  539 

Joint  Commission    44 

Judiciary 120.  14(1.  157,  104,  244.  260 

Legislative  244 

Manufuctme  IN  5 

Military  Afia its    ]S6 

Miscellaneous  181 

Municipal  Corporations 134 

Name  and  Boundary    105.-JOO 

Ordinance  and  Schedule  391.  894 

Poweis  , 1(;3 

Printing 248.  582 

Public  Accounts  and  Expenditurea    

Ref  ere  nee    

Revenue  and  Finance  

Revision  of  Constitution    

Rights  of  Mariied  Women  

Rules. 7 

Jolley 33 

Repoit  62,  192 


Schedule 

Schedule  lit"  Ordinance 

Submission 

School  Laiiil- 
S-iil  and  Coal  of  Anna 

Slate  In-titutions    .  177 

Subjects   Referred  77 

Constitution, 

Aiticles  Referred  to  Commit!  c.  - 

Caldwell  17   66   7d.71.71    B 

son 

Da  vies 
Dickinson 
Kd-eiton. 
HaHley 

Hole    '  74,81 

Lee 

Jolley  

M:,tson     

Neill 


Peck 


Referred  to  Committee- 

Report, 

Amendment 

Re.-olution  on 

Sterling 

Stnddard 

Williamson 

Willis 

Young 

Zitka 

-,., 
Enabling  Ad 

Jud.cial  Circuit 
School  Land- 


.  Diuhton 

Act  -  a-    I'le-ident 

Called  Convent  ion  to  0 

Ca|»it«.l   Lands 

Chairman 

I-'.lections 

I'ost  polled 

Re-olutioii  on  I'ulili<-  Accounts 
Day  of  Convention. 

l-'ir-t 

Second 

Third 
Filth 


111 


558  SOUTH  DAKOTA  DEBATES,   1889. 

Sixth : 51 

Seventh 61 

Eighth ;       87 

Ninth 107 

Tenth Ill 

Twelfth  112 

Thirteenth   115 

Fourteenth  119 

Fifteenth 125 

Sixteenth    ; 139 

Seventeenth 149 

Nineteenth 151 

Twentieth  155 

Twenty-first  191 

Twenty-third .' 265 

Twenty-fourth 377 

Twenty-sixth , 379 

Twenty-seventh 381 

Twenty-eighth  383 

Twenty- ninth  387 

Davies,  J.  G.    .. 

Adjournment 137 

Constitution  75,76,83 

Enabling  Act 315,358 

Geological  Survey 176 

Journals    37 

Judicial  Circuits 197,209 

Takes  Oath  of  Office  11 

Publication  and  Distribution  of  Constitution  538 

School  Lands 92 

Tenure  of  Office  432,  434 

Dickinson,  W.  (!. 

Capitol  Lands :     258 

Constitution  81 

Election 474,476 

Enabling  Act 332,  338,  352 

Journals    40 

Judicial  Circuits 199,201,212 

Tenure  of  Office  425,428,440 

Debates,  Published  and  Distributed    546 

Delegate,  absent 11 

Deposited  With  President 543 

Dispense  With  Reading  of  Journal 493 

Edgerton,  Alonzo  J. 

Additional  Resolution 535 

Amount  of  Expenditures 495,  6,  7,  498 

Constitution  70,  73,  75 

Elected  President    ..  5 


INDEX.  559 


Election 

Enabling  Act 

Explains  Vote 

Judicial  Circuit 

- 

Nominates  Hurdick 

14 

Resolution  to  Harrison 

Speech  mi  H«-inir  Elected  Preaidenl 

Elections, 

Ca  Id  we  11 

Co!  SOU 

Dickinson 

Edircit  on.  E.  Ci. 

Humphiev 

l'..-~ident  of  Convention 

Rule-   .... 

»:••..  ; 

Van  Bnskirk    .. 

Williams 

Wooda 

Enal>liim  Act  . 

Cloimh 

Cooper 

Daviea 

Dickinson 

Kdirei  t  on 

Fellows 

Hum  ulr  eV 

um  pnif  j 

Hiir  1 

uni  ie\ 

• 

<},,.,  ,,.,„„  1 

>nei  w  ooi  i 
ling 

Stroupe 

Van  Hnskirk 

Wiili 
Willis 

Qg 

ni<t  r:.t  ive    1  .' 

:  .11.  F. 

Adjounii; 
l-'.nal)linLr   \<  t 
Judicial  <  iM-uit 

,    IJelations 


'    .    •'• 


560  SOUTH  DAKOTA  DEBATES,  1889. 


Floor, 

Privileges 36 

Geological  Survey 

Clough  176 

Da  vies  176 

Memorial 175 

Governor, 

Proclamation  of 4 

Goddard,  W.  H. 

Nominated  Chief  Clerk  17 

Goodner,  Ivan  W.,  Official  Stenographer   36 

Hall,  David 

Judicial  Circuit  216 

Hand,  Called  to  the  Chair  540 

Harris,  C.  J.  B. 

Amendment  on  Journals   38 

Adjourn 147 

Harrison,  Benjamin,  President  389 

Hartley,  C.  G. 

Constitution  169 

Judicial  Circuits 223,226 

Tenure  of  Office  403 

Hole,  L.  H. 

Australian  Ballot  303 

Call  for  Adoption  of  Constitution  544 

Capitol  Lands 254 

Commissioner  of  Public  Instruction  539 

Committee  on  Schedule   493 

Constitution  74,81, 168, 169 

Elections    468 

Judicial  Circuit    214,216 

Schedule  and  Ordinance  261,  273 

Tenure  of  Office  399,  401,  442,  443,  444 

Hoppin,  Frank 

Messenger  18 

Humphrey,H.  A. 

Adjournment 113 

Capitol  Lands 257 

Constitution  84 

Elections 483 

Enabling  Act 322 

Incorporations  493 

Joint  Commission   25,  40 

Judicial  Circuit    227,232,233 

Printing 532 

Public  Lands  .253 

Rights  of  Married  Women  135, 136 

Rules  8 


IN  561 

Ul  >,89,96 

tenure 


Huntl.-y.  >.   I  . 

I)i-l>ui>in<:  Comn.iu  re 


Prayer 
Rules 

Scho.,1   I.:,  ; 

Hyde,  A.  W, 

'    :  17 

Incorporations  ...................... 

Irrigation 

Herman. 
Joint 


Kcilain 
HepoM 

Hi-solution    ....... 

Jolley,  John  L. 

Adjournment  P,| 

Clerk  of  Coin  t 
Constitution   ..................... 

Knal)lin<4  Act 
Federal  Hclations 
Journals 

I'u-M-ntation  of  Poitiait-  ;  (j 

Hiilhts  of  Married  \Voinen 

Hiilo  7._'d 

Tenure  ..f  otli.-.- 
Journal 


dough 

Da\i«'- 

Dickinsota 

Kt-llain 
Jolli-y  .... 

Xril 

Peck 

I'lirr 

Judicial  Circuit 
Anderson 

Coiirhinan 

Cooper 

Dickinson 
Bdgerton 

Fellows 


562  SOUTH  DAKOTA  DEBATES,  1889. 

Hall     216 

Hartley  223,226 

Hole 214,216 

Humphrey   227.  232 

Matson    206,209 

Sherwood   210,212,235,237 

Spooner  194 

Sterling  194,233,235 

Stoddard 237,.239 

Van  Buskirk 201,206,216 

AVood 232 

Judiciary  Committee  Report  146 

Kellam,  A.  G. 

Bonds   .512 

Communication  of  Greetings  8 

Commission    9 

Joint  Commission    30,  53,  408,  417,  456,  488,  490 

Journals    4 37,39 

Pic-serration  of  Four  Stars  for  Future  State  House    .".44 

Pi  esident  pro  tern   11 

Resolution  to  Adopt  544 

Kanouse,  Theo.  D 119 

Keith,  Albeit  J 45 

Kingsbury 17 

Kirby,  Joe    28 

Lee,T.  AV.  P.  .. 

Adjourn 376 

Australian  Ballot  315 

Constitution  75 

Enabling  Act 

Majority  Rule    ,. 

Prayer  

Rules  22 

Speech 58 

Wood 517 

Legislature  Hand  Book 

Cahhvell    ' 44 

Limitations 

Calchvell 503,504 

AVilliamson  506,  507,  508,  5C9 

Letter 

Brown,  T.  H 419 

Ford,C.  J 189 

Pruven,  O.  L 420 

Ruger,  Brig.  Gen.  T.  H 394 

McCusick,  William  115 

McGillicuddy.  Valentine  T 56 

Majority  Rule 500 


INDEX. 


563 


Memorial  on 

School  Lands 

Mennonite,  Petition 

Mellett< 

Mileaize  and  Other  K> 
I-Vllov 

Youim  . 

Mineral  CtulD  - 

Montana 
Moody,  G.C 

M  tson,  W.  H 

Const  it  ct  ion 


St:r\'  y 


Judicial  Circuit  9 
Xeill,  Henry 

Adjournment 
Clerks  of  Ci.uit 

Delegates 

Journals 

Rules 

Standing  Committee  .. 

Stenographer 

Substitute 

Tenure  of  Office  . 
Xo:th  Dakota.  Connnunicat i( 
Oath  Office 

Kirliy 

Tripi).  Haiileit 
Omnibus-  Hill 

Peck 
Price 
Xo  - 

Australian  Hallot   Sy-t 
Conunitt' 

•     ' 

Journals 

Omnilnis  Hill    

Pra;. 

Burdick 

Chap] 

Qough 

HUI:I;.  •    8.  i 
Lee 


17."» 


11 

. 


564  SOUTH  DAKOTA  DEBATES,  1889. 


Matson    

139,  155 

Stratton    

3 

Wakefield  

28 

Willis  ....                                

191,377,379,383 

President, 

Adoption  Re  port  

495 

Appreciation  and  Tribute    

542,543 

Corrections  in  Report   

549 

Corson  

111 

Debates  

546 

Four  Stars  for  Future  State  House    

544 

Hand  Called  to  Chair  

540 

Mot  ion  

529 

Portrait  s  

542 

Recess  

544,  549 

Sett  ling  Account  s  

538 

Price,  Chas.  H. 

.Adjourn  

50 

Appropriat  ions  

510,511 

Boundaries  

:  25,32 

Called  to  Chair  

535 

Committees  

103 

Joint  Comni  ission    

32 

Journals    

54 

Omnibus  

42 

Resolution    

536,539 

Rules  

23 

School  Lands  

89 

Seating    

17 

Pages  

45 

Petitions     

53 

Printing  

39,243 

Proclamations   

4 

Pruven,  O.  L  

420 

Public  Accounts  

57 

Public  Lands  

253 

Publication  of  Debates  

423 

Publication  and  Distribution  of  Constitution  

538 

Reports 

American  Sabbath  Union  

246 

Arrangement  and  Phraseology   

384 

Banking  and  Crurency  

179 

Bill  of  Rights  

131,134 

Boundary  and  Seat  of  Government   

266 

Compensation  of  Public  Officers  

125 

County  and  Township  Organization  

187 

Disbursing  Committee    

547 

Education  and  School  Lands  

250 

I  \ ; 
Bteotionand  K,  ,,,   ,.,   ,_., 

Executive  and  Admini>tiati\e 
K.xeinpt  ions 

Federal    Kehtions  !_.,        '., 

Kol  II I    of 

'  it  in  ional  An  endn  Hit.- 
Corporal  i«ms  Other  Than  Banking 

Impeachment  ,-,/,-. 

Judiciary  l'M,\-,7.\i 

Lative  Appoitionmenl 

l:tti\e  Coll  lliittee 

Manufacture  and  Ajiiicnlnne  js- 

Military  Afl'aiis 
Minority 

Miscellaneo:  g  ^^ 

Municipal  Corporations 

6  and  Boundary 
I'liMic  Accounts 

Rights  of  Married  Women  l_'l    ]. 

Rules 

Scliednle  and  Ordinance 
S<-hednle  and  Suluni-sion 

S-al  and  Coat   of  Aims  \^n 

St  ate  In>t  it  i.t  ions  j-- 

Resolutiona 

Ai  t(  siaii  System 
Australia n  System  .. 

Auditor 

Clerks  of  Conn 

Coin  |  liment  ary  t  o  l^Lei  t  on 

Constitution 

(iiant>  liy  Connies.- 

Joint  Coinn  i-sion 

Minei:  1  ('lain  s 

Public  A'-c,  unt  - 

Publication 

lifliiiious  \\'oi>hip 

Rules 

School   Lands 

nth  Stalidaid   I'alallel 
te  In-titut  i. 
Thanks 

Reception  to  Convention  by  Sious  I 

•.ihiis  Bill 
Koll  Call 


566  SOUTH  DAKOTA  DEBATES,  1889. 

Ruger,  Brig.  Gen.  T.  H 394 

Rules 

Clough 35 

Committee  on 7 

Election 367,370 

Huntley 34,35 

Repoit  of  Committee  on   20 

Rights  of  Committee    8 

Wescott  24 

Wood ! 33 

Sergeant  at  Aims 

Buchanan  17 

Carney,  James • 17 

Schedule  and  Ordinance 

Hole 261,273 

Seal  of  State, 56 

Seats, 

Caldwell    15, 19 

Lee 16,19 

Settling  Accounts   538 

State,  County  and  Municipal  Indebtedness    495 

State  Institutions   64 

Stenographers 

Brown,  T.  G.,  Goodner,  I.  W 36 

Stenographer, 

Atkinson  58 

Neill 58,59 

School  Lands 

Caldwell    97 

Committee  Report 87 

Cooper  95 

Davies  92 

Hole 94 

Humphrey  , • 89,96 

Huntley 92,94 

.  Price    89 

Sherwood    91 ;  107 

Sterling  63 

Wood 90,91,  93 

Young  96 

Sherwood,  Carl  G., 

Adjournment 109 

Boundaries  26 

Capitol  Lands 257 

Clerks  of  Court 294 

Constitution  18 

Enabling  Act 325 

Judicial  Report   210,  212,  235 


INDEX . 


567 


P!esident  of  Convention 

School  Land- 

Si^nin^  of  Con<t  it  ntioii 

Tenure  of  (  Miice 

State,  County  and  Municipal  Ind«-l>te< 
Spooner,  I.  R.. 

Atte.-ian  System 

Called  to  Chair 

Joint  Commission 

Judicial  Repoit 

President 

Privileges  of  Floor 
Sterling.  Thomas 

Adjournment 

Called  to  (.'hair  .... 

Clerk  of  Couit  s 

Const  it  ut  i<  in 

Elections 

F.nabliuir  Act 

Judicial  Circuits 

School  Lands 

Tenure  of  Office 
Stewait.  William  M..  I'.  S.  S- nut  or 

Irrigation 
Stoddard,  William 

Brott  's  Name  on  Const  r 

Constitution 

Judicial  Circuits 
StroujK-.  M.  1'.. 

Enabling  Ac; 
Tenure  of  Office 

Boucher 

Caldwell 
Da\  t 

Dickinson 
Edgerton 

Hartley 

H..i. 

Humphrey 

.).,lley 

Neill 

Sherwood 

Sterling 
Van  Buskirk 
Williams 

Willis 

\V .Is 


19 

\(\(, 


Ml 


568  SOUTH  DAKOTA  DEBATES,  1889. 

Territ 01  ial  Library 

Caldwell    543 

Thanks  Extended 

Hubbard  and  Van  Tassel  545 

Tripp,  Hon.  Bait  let  t 

Oath  of  Office 5 

Van  Buskirk,  S.  B 

Amendment  to  Indebt edness  : 502 

Am  e  ndm  e  n  t 529,530 

Australian  Ballot  302,313 

Clerks  of  Court  280,283 

Enabling  Act 342,345 

Election 485,486 

Judicial  Circuits 201,206,216 

President  of  Convention 5 

Tenure  of  Office  '. 440 

Van  Eps,  William    17 

View  <if  Committee 500 

Voting  104 

Van  Tassel 

Adjournment...' 11";  546 

Appoitionment    •     547 

Conference  Committee    8 

Thanks  Extended    545 

Wakeiield,  J.  A 18 

Watts.  Chas.  C  45 

Warner.  E.  C 18 

Wa  shingl  on    1 4 

Wat  chin  a  n   18 

Whit  lock,  John  F.,    .     189 

Wescott,  C.  R. 

Am  endm  e  nt 76 

Rules  34 

Temporary  Chaiiman  7 

Williams.  William  T.. 

Called  to  Chair  495 

Clerk  of  Couits 277,279.283.284 

Constitution   ICO,  101 

Election 4S8 

Enabling  Act 309.311,312.359 

Mennonite  Petition  t  53 

Tenure  of  Office  *'-•  >™~ ,  449>  453 

Williamson.  H.  M. 

Amendment 

Limit  of  Legislature   505,506,507,508 

Willis,  J.  V. 

Adjourn 242 


' 


Announces  Joli,  •. 
Appropriation  for  Klection 

Constitution 

KnablinL 
Prayer 

Tenure  of  <  Mlice 
Wood.  Chaunccy  I... 
Capitol  Lands 

Clerk 
Election 

Joint  Coimi>K-;ion 
.Judicial  Circuit 
Rules 

School   Lands 
TeiUMe  of  Oflicc 
Younii.   F.  <'>.. 

Adjournment 

C;i])itol    I.aiuis 

Constitution 

Knablinii  Act 
Mil. 

Omnibus  Bill 
School  Lands 
Zitka.  Joseph 

Adjournn  .cut 
Australian  Ballot 
Constitution 
Mnablinj:  Act 
Reference  to  Con 


II.-. 

ni 


w.t.  \-\ 


«B 

JW 
JAl 


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